SECURITIES AND EXCHANGE COMMISSION
Washington, DC   20549

FORM 8-K
 
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
 
Date of report (Date of earliest event reported) March 20, 2012
 
WINTHROP REALTY TRUST
(Exact Name of Registrant as Specified in Its Charter)
 
  Ohio  
                                           (State or Other Jurisdiction of Incorporation)                                          
 
001-06249
 
34-6513657
(Commission File Number)
 
(I.R.S. Employer Identification No.)
     
7 Bulfinch Place, Suite 500, P.O. Box 9507, Boston, Massachusetts
02114
(Address of Principal Executive Offices)
(Zip Code)
     
   (617) 570-4614  
(Registrant's Telephone Number, Including Area Code)
 
   n/a
(Former Name or Former Address, if Changed Since Last Report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions
 
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFT|R 230.425)
 
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 
 

 
 
Item 1.01.  Entry into a Material Definitive Agreement
 
           On March 20, 2012, Winthrop Realty Trust (“Winthrop”), WRT Realty, L.P. (the “Operating Partnership”), Winthrop’s wholly-owned operating partnership, and FUR Advisors LLC, Winthrop’s external advisor, entered into an underwriting agreement (“Underwriting Agreement”) with Barclays Capital Inc., Stifel, Nicolaus & Company, Incorporated, and Jefferies & Company, Inc. as representatives for the several underwriters (collectively, the “Underwriters”) and, for the purposes of Section 3 only of the Underwriting Agreement Michael Ashner, providing for the issuance and sale to the Underwriters of an aggregate of 2,800,000 (the “Firm Shares”) of Winthrop’s 9.25% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, $1.00 par value per share (the “Series D Preferred Shares”) and the issuance and sale by Winthrop of up to an additional aggregate of 420,000 Series D Preferred Shares (the “Option Shares”), at a price of $25.0385 per share including accrued dividends, net of underwriting discount.  Pursuant to the Underwriting Agreement, the Underwriters agreed to sell to, and Michael L. Ashner, Winthrop’s chief executive officer, agreed to purchase both for his own account and for that of his spouse and adult children, an aggregate of 5,000 Series D Preferred Shares at the offering price.  The sale of the Firm Shares and the Option Shares closed on March 23, 2012 resulting in net proceeds to Winthrop of approximately $77,900,000. The first dividend payment on the Firm Shares and Option Shares sold in the offering will be for a full quarter and payable on June 29, 2012.
 
The description of the Underwriting Agreement contained herein is qualified in its entirety by reference to the Underwriting Agreement, a copy of which is attached hereto as Exhibit 1.1 and is incorporated herein by reference.  For a more detailed description of the Underwriting Agreement, see the disclosure under the caption “Underwriting” contained in Winthrop’s prospectus, dated March 20, 2012, which has been filed with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 424(b) under the Securities Act of 1933, as amended, which disclosure is hereby incorporated by reference.
 
On March 23, 2012, Winthrop and the Operating Partnership executed a Third Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership in connection with Winthrop’s completion of an underwritten public offering of 3,220,000 shares (including 420,000 shares issued pursuant to the overallotment option) of its Series D Preferred Shares.  The Third Amendment to the Amended and Restated Agreement of Limited Partnership designates and authorizes the issuance to Winthrop by the Operating Partnership of up to 4,820,000 9.25% Series D Cumulative Redeemable Preferred Units (the “Series D Preferred Units”).  The Series D Preferred Units have substantially similar rights, preferences and other privileges as the Series D Preferred Shares.
 
A copy of the Third Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference. The summary set forth above is qualified in its entirety by reference to Exhibit 4.1.
 
 
 

 

Item 5.03.  Amendment to Articles of Incorporation or Bylaws; Change In Fiscal Year.

On March 21, 2012, Winthrop filed with the Secretary of State of the State of Ohio an Amended and Restated Certificate of Designations (the “Amended Certificate of Designations”), to Winthrop’s Second Amended and Restated Declaration of Trust classifying and designating 4,820,000 shares of Winthrop’s shares of beneficial interest as Series D Preferred Shares.  The Amended Certificate of Designations designated the powers, preferences and privileges of the Series D Preferred Shares.  The Amended Certificate of Designations was effective upon filing.  The only changes to the Certificate of Designations with respect to the Series D Preferred Shares previously filed with the Secretary of State of the State of Ohio was to (i) increase the number of authorized Series D Preferred Shares and (ii) modify certain provisions relating to dividend payments which were specific to the original issuance of Series D Preferred Shares on November 28, 2011.

A copy of the Amended Certificate of Designations is filed as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 8.01.  Other Matters
 
           On March 20, 2012, Winthrop issued a press release announcing the pricing of the Firm Shares.  A copy of the press release is attached hereto as Exhibit 99.1.
 
On March 23, 2012, Winthrop issued a press release announcing the consummation of its public offering of the Series D Preferred Shares.  A copy of the press release is attached hereto as Exhibit 99.2.
 
On March 23, 2012, Hahn Loeser & Parks LLP delivered its legality opinion with respect to the Series D Preferred Shares.  A copy of the legality opinion is attached hereto as Exhibit 5.1 and incorporated herein by reference.
 
Item 9.01.  Financial Statements and Exhibits
 
 
Exhibits
 
 
1.1
Underwriting Agreement, dated March 20, 2012 among Winthrop Realty Trust, WRT Realty, L.P., FUR Advisors LLC and the Underwriters, and for the purposes of Section 3 only, Michael Ashner.
 
4.1
Third Amendment to Agreement of Limited Partnership of WRT Realty, L.P.
 
4.2
Amended and Restated Certificate of Designations of 9.25% Series D Cumulative Convertible Preferred Shares of Beneficial Interest.
 
5.1
Opinion of Hahn Loeser & Parks LLP
 
23.1
Consent of Hahn Loeser & Parks LLP (included in the opinion filed as Exhibit 5.1)
 
99.1
Press Release dated March 20, 2012.
 
99.2
Press Release dated March 23, 2012.
 
 
 

 
 
SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized on this 23rd day of March, 2012.
 
  WINTHROP REALTY TRUST  
       
       
  
By:
/s/ Michael L. Ashner
 
   
Michael L. Ashner
 
   
Chairman and Chief Executive Officer
 
 
 
 
 

 
 
Exhibit No.
Description
 
1.1
Underwriting Agreement, dated March 20, 2012 among Winthrop Realty Trust, WRT Realty, L.P., FUR Advisors LLC and the Underwriters, and, for the purposes of Section 3 only, Michael Ashner .
 
4.1
Third Amendment to Agreement of Limited Partnership of WRT Realty, L.P.
 
4.2
Amended and Restated Certificate of Designations of 9.25% Series D Cumulative Convertible Preferred Shares of Beneficial Interest.
 
5.1
Opinion of Hahn Loeser & Parks LLP
 
23.1
Consent of Hahn Loeser & Parks LLP (included in the opinion filed as Exhibit 5.1)
 
99.1
Press Release dated March 20, 2012.
 
99.2
Press Release dated March 23, 2012.
 
   
Winthrop Realty Trust
TRADED: NYSE: FUR
7 Bulfinch Place, Suite 500
Boston, MA  02114
 
Contact at Winthrop Realty Trust
Beverly Bergman
Investor or Media Inquiries
Phone: (617) 570-4614; e-mail: bbergman@firstwinthrop.com  

FOR IMMEDIATE RELEASE
March 20, 2012

WINTHROP REALTY TRUST ANNOUNCES PRICING OF $70.1 MILLION OF ITS 9.25% SERIES D CUMULATIVE REDEEMABLE PREFERRED SHARES OF BENEFICIAL INTEREST

FOR IMMEDIATE RELEASE – BOSTON, March 20 – Winthrop Realty Trust (NYSE:FUR) (“Winthrop”) today announced that it has sold in an underwritten public offering 2,800,000   shares of its 9.25% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest at a price of $25.0385 per share including accrued dividends.  The first dividend payment on the Series D Preferred Shares sold in this offering will be for a full quarter and payable on June 29, 2012.  In connection with the offering, Winthrop granted the underwriters an option for 30 days to purchase up to an additional 420,000 Series D preferred shares to cover over-allotments, if any.  The offering is subject to customary closing conditions and is expected to close on March 23, 2012.  Barclays Capital Inc., Stifel, Nicolaus & Company, Incorporated and Jefferies & Company, Inc. are acting as joint book-running managers for the offering. Credit Suisse Securities (USA) LLC and KeyBanc Capital Markets Inc. are acting as joint lead managers and JMP Securities LLC is acting as a   co-manager.
 
Winthrop estimates that the net proceeds from the offering, after the underwriting discounts and commissions and estimated offering expenses payable by Winthrop, will be approximately $67.7 million, or approximately $77.9 million if the underwriters’ overallotment option is exercised in full.  Winthrop intends to use the net proceeds from the offering to fund future acquisitions, pay down borrowings under its credit facility, repurchase its common shares and/or for general working capital purposes, including funding capital expenditures, tenant improvements and leasing commissions.
 
The offering is being made pursuant to Winthrop’s effective shelf registration statement previously filed with the Securities and Exchange Commission.  The offering of these securities will be made only by means of a prospectus and a related prospectus supplement.  Copies of the prospectus and prospectus supplement may be obtained from Barclays Capital Inc., c/o Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, New York 11717, by email at Barclaysprospectus@broadridge.com or by telephone at (888) 603-5847;  from Stifel, Nicolaus & Company, Incorporated, One South Street, 15th Floor, Baltimore, MD 21202, Attention: Syndicate Department or by telephone at (443) 224 1988; or from Jefferies & Company, Inc., Attn: Debt Capital Markets, 520 Madison Avenue, 8th Floor, New York, NY, 10022 or by telephone at (201) 761-7610 or by email at Prospectus_Department@Jefferies.com .
 
 
 

 
 
   
Winthrop Realty Trust
TRADED: NYSE: FUR
7 Bulfinch Place, Suite 500
Boston, MA  02114
 
An electronic copy of the prospectus supplement and the accompanying prospectus will also be available on the website of the Securities and Exchange Commission at http://www.sec.gov .

This communication shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state in which the offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of that state.

__________________

Winthrop Realty Trust is a NYSE-listed real estate investment trust (REIT) headquartered in Boston, Massachusetts.  Additional information on Winthrop Realty Trust is available on its Web site at www.winthropreit.com .

“Safe Harbor” Statement under the Private Securities Litigation Reform Act of 1995.  With the exception of the historical information contained in this news release, the matters described herein contain “forward-looking” statements that involve risk and uncertainties that may individually or collectively impact the matters herein described.  These are detailed from time to time in the “Risk Factors” section of the Company’s SEC reports.  Further information relating to the Company’s financial position, results of operations, and investor information is contained in the Company’s annual and quarterly reports filed with the SEC and available for download at its website www.winthropreit.com or at the SEC website www.sec.gov .

 
 
 
AMENDMENT NO. 3
TO THE
AGREEMENT OF LIMITED PARTNERSHIP
OF
WRT REALTY L.P.

This Amendment is made as of March 23, 2012 by and among Winthrop Realty Trust, an Ohio real estate investment trust (the “ General Partner ”), as the general partner of WRT Realty L.P., a Delaware limited partnership (the “ Partnership ”), and WRT-TRS Management Inc., a Delaware corporation, as the limited partner of the Partnership, for the purpose of amending the Agreement of Limited Partnership of the Partnership, dated as of January 1, 2005, as amended by Amendment No. 1 to Agreement of Limited Partnership of the Partnership, dated as of December 1, 2005 and Amendment No. 2 to Agreement of Limited Partnership of the Partnership, dated as of November 28, 2011 (the “ Partnership Agreement ”) to issue additional Partnership Interests in the form of Series D Preferred Units.  Capitalized terms used herein and not defined shall have the meanings given to them in the Partnership Agreement.
 
WHEREAS , the Board of Trustees (the “ Board ”) of the General Partner met and approved on November 2, 2011 certain resolutions classifying and designating 1,840,000 preferred shares of beneficial interest of the General Partner as Series D Preferred Shares (as defined below);
 
WHEREAS , the General Partner filed a Certificate of Designations to the Second Amended and Restated Declaration of Trust (the “ Declaration of Trust ”) with the Secretary of State of Ohio on November 22, 2011, establishing a series of preferred shares of beneficial interest of the General Partner, designated the “Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $1.00 per share” (the “ Series D Preferred Shares ”);
 
WHEREAS , on November 28, 2011, the Partners amended the Partnership Agreement to create an additional class of Partnership Interests in the form of Series D Preferred Units having designations, preferences and other rights that are substantially the same as the economic rights of the Series D Preferred Shares, and classifying and designating 1,840,000 Partnership Interests as Series D Preferred Units;
 
WHEREAS , on November 28, 2011, the General Partner issued 1,600,000 Series D Preferred Shares;
 
WHEREAS , the Board of the General Partner met and approved on March 13, 2012 certain resolutions classifying and designating an additional 2,980,000  preferred shares of general interest of the General Partner as Series D Preferred Shares;
 
 
 

 
 
WHEREAS , the General Partner filed a Certificate of Designations to the Declaration of Trust with the Secretary of State of Ohio on March 21, 2012,classifying and establishing an additional 2,980,000 preferred shares of beneficial interest of the General Partner as Series D Preferred Shares;
 
WHEREAS , on the date hereof, the General Partner issued 3,220,000 additional Series D Preferred Shares; and
 
WHEREAS , the General Partner, has determined that, in connection with the issuance of the additional Series D Preferred Shares, it is necessary and desirable to amend the Partnership Agreement to classify and designate additional Partnership Interests as Series D Preferred Units.
 
NOW, THEREFORE , in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the General Partner hereby amends the Partnership Agreement as follows:
 
Section 1.                        Article I of the Partnership Agreement is hereby amended by modifying the following definitions:
 
Series D Certificate of Designations ” means the Certificate of Designations of the General Partner in connection with its REIT Series D Preferred Shares, as filed with the Ohio Secretary of State on November 22, 2011 and the Certificate of Designations of the General Partner in connection with its REIT Series D Preferred Shares, as filed with the Ohio Secretary of State on March 21, 2012, collectively.

Section 2.                        Section 2 of Amendment No. 2 to the Partnership Agreement is hereby amended by deleting Section 2.1 thereof and replacing such Section with the following new Section 2.1 , and by deleting Section 2.2(A) thereof and replacing such Section with the following new Section 2.2(A):
 
Section 2.1                        Designation and Number .   A series of Limited Partnership Interests in the Partnership designated as the “9.25% Series D Cumulative Redeemable Preferred Units” (the “ Series D Preferred Units ”) is hereby established, with the rights, priorities and preferences set forth herein. The number of Series D Preferred Units shall be 4,820,000.
 
Section 2.2.                      Distributions
 
A.            Payment of Distributions .  Pursuant to Section 5.1 of the Partnership Agreement and subject to the rights of holders of Parity Preferred Units as to the payment of distributions, the General Partner, as holder of the Series D Preferred Units, will be entitled to receive, when, as and if declared by the Partnership acting through the General Partner, cumulative preferential cash distributions in an amount equal to the Series D Priority Return. Such distributions shall be cumulative, shall accrue from and include the original date of issuance of the Series D Preferred Units or from the most recent Distribution Payment Date to which full cumulative distributions have been paid on the Series D Preferred Units, and will be payable (i) quarterly (such quarterly periods for purposes of payment and accrual will be the quarterly periods ending on the dates specified in this sentence and not calendar quarters) in arrears, on the last calendar day of March, June, September and December of each year commencing on December 30, 2011, and (ii) in the event of a redemption of Series D Preferred Units, on the date on which the Series D Preferred Units are redeemed (each a “Series D Preferred Unit Distribution Payment Date”).  If any date on which distributions are to be made on the Series D Preferred Units is not a Business Day, then payment of the distribution to be made on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date.
 
 
2

 
 
Section 3 .                      To the extent any provisions of this Amendment are inconsistent with the provisions of the Partnership Agreement, the provisions of this Amendment shall control.
 
Section 4 .                      The Partnership hereby issues 3,220,000 Series D Preferred Units to the General Partner.
 
Section 5 .                       Exhibit A to the Partnership Agreement is hereby replaced by Exhibit A attached hereto.
 
Section 6 .                      Except as modified herein, all terms and conditions of the Partnership Agreement shall remain in full force and effect, which terms and conditions the General Partner hereby ratifies and confirms.
 
 
3

 
 
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set forth above.
 
 
WRT REALTY L.P.
 
       
 
By:  
Winthrop Realty Trust, an Ohio real estate investment trust, its General Partner  
       
       
 
By:
   
  Name:  
  Title:  
 

 
WRT-TRS MANAGEMENT INC.
 
       
       
 
By:
   
  Name:  
  Title:  
       
 
 
[Signature Page to Amendment No. 3 to Agreement of Limited Partnership]
 
 
 

 
 
EXHIBIT A

Partners And Percentage Interest

 
General Partner Interests
 
   
OP Units
   
Name
 
Class
 
Number
 
Percentage Interest
             
Winthrop Realty Trust
 
Common
 
32,987,395
 
99.8%
 
Limited Partnership Interests

   
OP Units
   
Name
 
Class
 
Number
 
Percentage Interest
             
Winthrop Realty Trust
 
Series D Preferred Units
 
4,400,000
 
100%
             
WRT-Trs Management Inc.
 
Common
 
66,107
 
.2%


 
SERIES D CUMULATIVE REDEEMABLE
 
PREFERRED SHARES OF BENEFICIAL INTEREST
 
AMENDED AND RESTATED CERTIFICATE OF DESIGNATIONS
 
 
WINTHROP REALTY TRUST
 
--------------------------------------------------------------------------------
 
Designating a Series of Preferred Shares of Beneficial Interest as Series D Cumulative Redeemable Preferred Shares of Beneficial Interest and Fixing Distribution and Other Preferences and Rights of Such Series
 
--------------------------------------------------------------------------------
 
Dated as of March 20, 2012
 
--------------------------------------------------------------------------------
 
 
 
 
 

 
 
WINTHROP REALTY TRUST
 
The undersigned, Michael L. Ashner, Chairman and Chief Executive Officer of Winthrop Realty Trust, an Ohio real estate investment trust (the “Trust”), hereby certifies on behalf of the Trust that:
 
The Board of Trustees adopted the following resolution creating the Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $1.00 per share, of the Trust:
 
RESOLVED, that pursuant to the authority vested in the Board of Trustees in accordance with Section 4.3 of the Second Amended and Restated Declaration of Trust, the Board of Trustees previously designated 1,840,000 of the preferred shares of beneficial interest of the Trust as Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $1.00 per share (“Series D Preferred Shares”), and the designation and amount thereof and the preferences and relative, optional and other special rights of the shares of such series, and the qualifications, limitations or restrictions thereof were set forth in a Certificate of Designations dated November 21, 2011 (the “Original Certificate of Designations”);
 
RESOLVED, that the Board of Trustees has determined that the number of preferred shares of beneficial interest of the Trust which constitute Series D Preferred Shares shall be increased from 1,840,000 up to 4,820,000;
 
RESOLVED, the Original Certificates of Designations is hereby amended and restated in its entirety as follows:
 
Section 1.   Number of Shares and Designation .  This class of preferred shares shall be designated as Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $1.00 per share (the “Series D Preferred Shares”), and the number of shares which shall constitute such series shall not be more than 4,820,000 shares, which number may be decreased (but not below the number thereof then outstanding) from time to time by the Board of Trustees.
 
Section 2.   Definitions .  For purposes of the Series D Preferred Shares, the following terms shall have the meanings indicated:
 
“Alternative Conversion Consideration” shall have the meaning set forth in Section 9(a).
 
“Alternative Form Consideration” shall have the meaning set forth in Section 9(a).
 
“Board of Trustees” shall mean the Board of Trustees of the Trust or any committee authorized by such Board of Trustees to perform any of its responsibilities with respect to the Series D Preferred Shares.
 
“By-Laws” shall mean the Trust’s By-Laws, as amended and supplemented from time to time.
 
 
2

 
 
“Business Day” shall mean any day other than a Saturday, Sunday or a day on which state or federally chartered banking institutions in New York, New York or Boston, Massachusetts are not required to be open.
 
“capital shares” shall mean all shares of beneficial interest of the Trust of any class or series, whether designated as common or preferred.
 
“Change of Control” shall mean after the original issuance of the Series D Preferred Shares, the following have occurred and are continuing:
 
(i)   the acquisition by any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act, of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of capital shares entitling that person to exercise more than 50% of the total voting power of all capital shares entitled to vote generally in the election of the Trust’s trustees (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); and
 
(ii)   following the closing of any transaction referred to in (i) above, neither the Trust nor the acquiring or surviving entity has a class of common securities (or American Depositary Receipts representing such securities) listed on the New York Stock Exchange (the “NYSE”), the NYSE Amex Equities (the “NYSE Amex”), or the NASDAQ Stock Market (“NASDAQ”), or listed or quoted on an exchange or quotation system that is a successor to the NYSE, the NYSE Amex or NASDAQ.
 
“Change of Control Conversion Date” shall mean a Business Day set forth in the notice of Change of Control provided in accordance with Section 9(c) below that is no less than 20 days nor more than 35 days after the date on which the Trust provides such notice pursuant to Section 9(c).
 
“Change of Control Conversion Right” shall have the meaning set forth in Section 9(a).
 
“Common Shares” shall mean the common shares of beneficial interest of the Trust, par value $1.00 per share.
 
“Common Share Conversion Consideration” shall have the meaning set forth in Section 9(a).
 
“Common Share Price” shall have the meaning set forth in Section 9(a).
 
“Conversion Consideration” shall have the meaning set forth in Section 9(a).
 
 
3

 
 
“Declaration of Trust” shall mean the Second Amended and Restated Declaration of Trust of the Trust, dated May 21, 2009, as the same may be amended and/or restated from time to time.
 
“Dividend Payment Date” shall mean the last calendar day of each March, June, September and December, commencing December 30, 2011; provided, however, that if any Dividend Payment Date falls on any day other than a Business Day, the dividend payment due on such Dividend Payment Date may be paid on the Business Day immediately following such Dividend Payment Date; provided, further, that if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if paid on such Dividend Payment Date, and no interest or additional dividends or other sums shall accrue on the amount so payable from such Dividend Payment Date to such next succeeding Business Day.
 
“Dividend Periods” shall mean quarterly dividend periods commencing on January 1, April 1, July 1 and October 1 of each year and ending on and including the day preceding the first day of the next succeeding Dividend Period (other than the initial Dividend Period which commenced on November 28, 2011 and ended on and included December 31, 2011, and other than the Dividend Period during which any Series D Preferred Shares shall be redeemed pursuant to Section 6 or Section 7, which shall end on and include the day preceding the call date with respect to the Series D Preferred Shares being redeemed).
 
“Dividend Record Date” shall mean the date designated by the Board of Trustees for the payment of dividends that is not more than 35 or fewer than 10 days prior to the applicable Dividend Payment Date.
 
“DTC” shall have the meaning set forth in Section 9(e).
 
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
 
“Issue Date” shall mean the date on which the applicable Series D Preferred Shares are issued.
 
“Parity Preferred” shall have the meaning set forth in Section 8(b).
 
“Preferred Dividend Default” shall have the meaning set forth in Section 8(b).
 
“Preferred Trustees” shall have the meaning set froth in Section 8(b).
 
“Redemption Right” shall have the meaning set forth in Section 6(b).
 
“SEC” shall have the meaning set forth in Section 11.
 
“Set Apart for Payment” shall be deemed to include, without any action other than the following, the recording by the Trust in its accounting ledgers of any accounting or bookkeeping entry which indicates, pursuant to a declaration of dividends or other distribution by the Board of Trustees, the allocation of funds to be so paid on any series or class of capital shares; provided, however, that if any funds for any class or series of Junior Shares or any class or series of capital shares ranking on a parity with the Series D Preferred Shares as to the payment of dividends are placed in a separate account of the Trust or delivered to a disbursing, paying or other similar agent, then “set apart for payment” with respect to the Series D Preferred Shares shall mean placing such funds in a separate account or delivering such funds to a disbursing, paying or other similar agent.
 
 
4

 
 
“Share Cap” shall have the meaning set forth in Section 9(a).
 
“Special Optional Redemption Right” shall have the meaning set forth in Section 7(a).
 
“Trading Day” shall mean any day on which the NYSE is open for trading, or if such securities are not listed or admitted for trading on the NYSE, on the principal national securities exchange on which such securities are listed or admitted, or if not listed or admitted for trading on any national securities exchange, on the National Market System of NASDAQ, or if such securities are not quoted on such National Market System, in the applicable securities market in which the securities are traded.
 
“Transfer Agent” means Computershare Trust Company, N.A., or such other agent or agents of the Trust as may be designated by the Board of Trustees or their designee as the transfer agent, registrar and dividend disbursing agent for the Series D Preferred Shares.
 
Section 3.   Rank .  The Series D Preferred Shares will, with respect to dividend rights and rights upon voluntary or involuntary liquidation, dissolution or winding up of the Trust, rank: (a) senior to the Common Shares and all classes or series of capital shares, whether common or preferred, now or hereafter authorized, issued or outstanding expressly designated as ranking junior to the Series D Preferred Shares as to dividend rights and rights upon voluntary or involuntary liquidation, dissolution or winding up of the Trust; (b) on parity with any class or series of capital shares expressly designated as ranking on parity with the Series D Preferred Shares as to dividend rights and rights upon voluntary or involuntary liquidation, dissolution or winding up of the Trust; and (c) junior to any class or series of capital shares expressly designated as ranking senior to the Series D Preferred Shares as to dividend rights and rights upon voluntary or involuntary liquidation, dissolution or winding up of the Trust. The term “capital shares” does not include convertible or exchangeable debt securities, which will rank senior to the Series D Preferred Shares prior to conversion or exchange. The Series D Preferred Shares will also rank junior in right of payment to the Trust’s other existing and future debt obligations.
 
Section 4.   Dividends .
 
(a)   Subject to the preferential rights of the holders of any class or series of capital shares ranking senior to the Series D Preferred Shares as to dividends, the holders of shares of the Series D Preferred Shares shall be entitled to receive, when, as and if authorized by the Board of Trustees and declared by the Trust, out of funds legally available for the payment of dividends, cumulative cash dividends at the rate of 9.25% per annum of the $25.00 liquidation preference per share of the Series D Preferred Shares (equivalent to a fixed annual amount of $2.3125 per share of the Series D Preferred Shares).  Such dividends shall accrue and be cumulative from and including November 28, 2011 or from the most recent Dividend Payment Date to which full cumulative dividends have been paid and shall be payable quarterly in arrears on each Dividend Payment Date commencing December 30, 2011.  The amount of any dividend payable on the Series D Preferred Shares for any Dividend Period shall computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends will be payable to holders of record as they appear in the records of the Trust at the close of business on the applicable Dividend Record Date. Notwithstanding any provision to the contrary contained herein, each outstanding share of Series D Preferred Shares shall be entitled to receive a dividend with respect to any Dividend Record Date equal to the dividend paid with respect to each other share of Series D Preferred Share that is outstanding on such date.
 
 
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(b)   Notwithstanding anything contained herein to the contrary, dividends on the Series D Preferred Shares shall accrue whether or not the Trust has earnings, whether or not there are funds legally available for the payment of such dividends, and whether or not such dividends are authorized or declared.
 
(c)   Except as provided in Section 4(d) below, no dividends shall be declared and paid or declared and set apart for payment, and no other distribution of cash or other property may be declared and made, directly or indirectly, on or with respect to, any Common Shares or shares of any other class or series of capital shares ranking, as to dividends, on parity with or junior to the Series D Preferred Shares (other than a dividend paid in Common Shares or in capital shares of any other class or series of capital shares ranking junior to the Series D Preferred Shares as to dividends and upon liquidation) for any period, nor shall any Common Shares or any other capital shares of any other class or series ranking, as to dividends or upon liquidation, on parity with or junior to the Series D Preferred Shares be redeemed, purchased or otherwise acquired for any consideration, nor shall any funds be paid or made available for a sinking fund for the redemption of such shares, and no other distribution of cash or other property may be made, directly or indirectly, on or with respect thereto by the Trust (except by conversion into or exchange for other capital shares of any class or series ranking junior to the Series D Preferred Shares as to dividends and upon liquidation, and except for the acquisition of shares made pursuant to the provisions of Article Sixth of the By-laws or Section 10 hereof and the purchase or acquisition of capital shares of any other class or series ranking on parity with the Series D Preferred Shares as to payment of dividends and upon liquidation pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of Series D Preferred Shares), unless full cumulative dividends on the Series D Preferred Shares for all past Dividend Periods that have ended shall have been or contemporaneously are (i) declared and paid in cash or (ii) declared and a sum sufficient for the payment thereof in cash is set apart for such payment.
 
(d)   When dividends are not paid in full (and a sum sufficient for such full payment is not so set apart) on the Series D Preferred Shares and the shares of any other class or series of capital shares ranking, as to dividends, on parity with the Series D Preferred Shares, all dividends declared upon the Series D Preferred Shares and each such other class or series of capital shares ranking, as to dividends, on parity with the Series D Preferred Shares shall be declared pro rata so that the amount of dividends declared per share of the Series D Preferred Shares and such other class or series of capital shares shall in all cases bear to each other the same ratio that accrued dividends per share on the Series D Preferred Shares and such other class or series of capital shares (which shall not include any accrual in respect of unpaid dividends on such other class or series of capital shares for prior dividend periods if such other class or series of capital shares does not have a cumulative dividend) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series D Preferred Shares which may be in arrears.
 
 
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(e)   Holders of the Series D Preferred Shares shall not be entitled to any dividend, whether payable in cash, property or capital shares, in excess of full cumulative dividends on the Series D Preferred Shares as provided herein. Any dividend payment made on the Series D Preferred Shares shall first be credited against the earliest accrued but unpaid dividends due with respect to such shares which remain payable. Accrued but unpaid distributions on the Series D Preferred Shares will accumulate as of the Dividend Payment Date on which they first become payable.
 
(f)   No distributions on Series D Preferred Shares shall be declared by the Board of Trustees or paid or set apart for payment by the Trust at such time as the terms and provisions of any agreement of the Trust, including any agreement relating to its indebtedness, prohibits such declaration, payment or setting apart for payment or provides that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law.
 
Section 5.   Liquidation Preference .
 
(a)   Upon any voluntary or involuntary liquidation, dissolution or winding up of the Trust, before any distribution or payment shall be made to holders of Common Shares or any other class or series of capital shares ranking, as to rights upon any voluntary or involuntary liquidation, dissolution or winding up of the Trust, junior to the Series D Preferred Shares, the holders of the Series D Preferred Shares shall be entitled to be paid out of the assets of the Trust legally available for distribution to its beneficiaries, after payment of or provision for the debts and other liabilities of the Trust, a liquidation preference of $25.00 per share, plus an amount equal to any accrued and unpaid dividends (whether or not authorized or declared) to but excluding the date of payment. In the event that, upon such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Trust are insufficient to pay the full amount of the liquidating distributions on all outstanding Series D Preferred Shares and the corresponding amounts payable on all shares of other classes or series of capital shares ranking, as to liquidation rights, on parity with the Series D Preferred Shares in the distribution of assets, then the holders of the Series D Preferred Shares and each such other class or series of capital shares ranking, as to voluntary or involuntary liquidation rights, on parity with the Series D Preferred Shares shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled. Written notice of any such voluntary or involuntary liquidation, dissolution or winding up of the Trust, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not fewer than 30 or more than 60 days prior to the payment date stated therein, to each record holder of Series D Preferred Shares at the respective addresses of such holders as the same shall appear on the transfer records of the Trust. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series D Preferred Shares will have no right or claim to any of the remaining assets of the Trust. The consolidation or merger of the Trust with or into any other corporation, trust or entity, or the voluntary sale, lease, transfer or conveyance of all or substantially all of the property or business of the Trust, shall not be deemed to constitute a liquidation, dissolution or winding up of the Trust.
 
 
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(b)   In determining whether a distribution (other than upon voluntary or involuntary liquidation), by dividend, redemption or other acquisition of capital shares or otherwise, is permitted under the laws of the State of Ohio, amounts that would be needed, if the Trust were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of Series D Preferred Shares shall not be added to the Trust’s total liabilities.
 
Section 6.   Redemption .
 
(a)   Series D Preferred Shares shall not be redeemable prior to November 28, 2016 except as set forth in Section 7 or to preserve the status of the Trust as a REIT (as defined in Section 10(a)) for United States federal income tax purposes. In addition, the Series D Preferred Shares shall be subject to the provisions of Section 10 pursuant to which Series D Preferred Shares owned by a beneficiary in excess of the Ownership Limit (as defined in Section 10(a)) shall automatically be transferred to a Charitable Trust (as such term is defined in Section 10(a)) in accordance with the provisions of Section 10.
 
(b)   On and after November 28, 2016, the Trust, at its option upon not fewer than 30 or more than 60 days’ written notice, may redeem the Series D Preferred Shares, in whole or in part, at any time or from time to time, for cash at a redemption price of $25.00 per share, plus all accrued and unpaid dividends (whether or not declared) thereon up to but not including the date fixed for redemption, without interest, to the extent the Trust has funds legally available therefor (the “ Redemption Right ”). If fewer than all of the outstanding Series D Preferred Shares are to be redeemed, the Series D Preferred Shares to be redeemed shall be redeemed pro rata (as nearly as may be practicable without creating fractional shares) by lot or by any other equitable method determined by the Trust that will not result in a violation of the Ownership Limit (as defined in Section 10(a)).  If redemption is to be by lot and, as a result, any holder of Series D Preferred Shares would have actual ownership, Beneficial Ownership or Constructive Ownership (each as defined in Section 10(a)) in excess of the Ownership Limit (as defined in Section 10(a) or such other limit as permitted by the Board of Trustees pursuant to Section 10, because such holder’s Series D Preferred Shares were not redeemed, or were only redeemed in part, then, except as otherwise provided in the Declaration of Trust or By-Laws, the Trust shall redeem the requisite number of Series D Preferred Shares of such holder such that no holder will hold an amount of Series D Preferred Shares in excess of the applicable ownership limit, subsequent to such redemption. Holders of Series D Preferred Shares to be redeemed shall surrender such Series D Preferred Shares at the place designated in such notice and shall be entitled to the redemption price of $25.00 per share and any accrued and unpaid dividends payable upon such redemption following such surrender. If (i) notice of redemption of any Series D Preferred Shares has been given, (ii) the funds necessary for such redemption have been set aside by the Trust in trust for the benefit of the holders of Series D Preferred Shares so called for redemption, and (iii) irrevocable instructions have been given to pay the redemption price and all accrued and unpaid dividends, then from and after the redemption date, dividends shall cease to accrue on such Series D Preferred Shares, such Series D Preferred Shares shall no longer be deemed outstanding, and all rights of the holders of such shares shall terminate, except the right to receive the redemption price plus any accrued and unpaid dividends payable upon such redemption, without interest. So long as full cumulative dividends on the Series D Preferred Shares for all past Dividend Periods that have ended shall have been or contemporaneously are (i) declared and paid in cash, or (ii) declared and a sum sufficient for the payment thereof in cash is set apart for payment, nothing herein shall prevent or restrict the Trust’s right or ability to purchase, from time to time, either at a public or a private sale, all or any part of the Series D Preferred Shares at such price or prices as the Trust may determine, subject to the provisions of applicable law, including the repurchase of Series D Preferred Shares in open-market transactions duly authorized by the Board of Trustees.
 
 
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(c)   In the event of any redemption of the Series D Preferred Shares in order to preserve the status of the Trust as a REIT for United States federal income tax purposes, such redemption shall be made in accordance with the terms and conditions set forth in this Section 6 of this Certificate of Designations. If the Trust calls for redemption any Series D Preferred Shares pursuant to and in accordance with this Section 6(c), then the redemption price for such shares will be an amount in cash equal to $25.00 per share together with all accrued and unpaid dividends to but excluding the dated fixed for redemption.
 
(d)   Unless full cumulative dividends on the Series D Preferred Shares for all past Dividend Periods that have ended shall have been or contemporaneously are (i) declared and paid in cash, or (ii) declared and a sum sufficient for the payment thereof in cash is set apart for payment, no Series D Preferred Shares shall be redeemed pursuant to the Redemption Right or Special Optional Redemption Right (defined below) unless all outstanding Series D Preferred Shares are simultaneously redeemed, and the Trust shall not purchase or otherwise acquire directly or indirectly any Series D Preferred Shares or any class or series of capital shares ranking, as to dividends or upon liquidation, on parity with or junior to the Series D Preferred Shares (except by conversion into or exchange for capital shares ranking, as to dividends and upon liquidation, junior to the Series D Preferred Shares); provided , however , that the foregoing shall not prevent the purchase of Series D Preferred Shares, or any other class or series of capital shares ranking, as to dividends or upon liquidation, on parity with or junior to the Series D Preferred Shares, by the Trust in accordance with the terms of Sections 6(c) and 10 of this Certificate of Designations or otherwise, in order to ensure that the Trust remains qualified as a REIT for United States federal income tax purposes, or the purchase or acquisition of Series D Preferred Shares or shares of any other class or series of capital shares ranking on parity with Series D Preferred Shares as to payment of dividends and upon liquidation pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Series D Preferred Shares.
 
(e)   Notice of redemption pursuant to the Redemption Right will be mailed by the Trust, postage prepaid, not fewer than 30 or more than 60 days prior to the redemption date, addressed to the respective holders of record of the Series D Preferred Shares to be redeemed at their respective addresses as they appear on the transfer records of the Trust. No failure to give or defect in such notice shall affect the validity of the proceedings for the redemption of any Series D Preferred Shares except as to the holder to whom such notice was defective or not given. In addition to any information required by law or by the applicable rules of any exchange upon which the Series D Preferred Shares may be listed or admitted to trading, each such notice shall state: (i) the redemption date; (ii) the redemption price; (iii) the number of Series D Preferred Shares to be redeemed; (iv) the place or places where the certificates, if any, representing Series D Preferred Shares are to be surrendered for payment of the redemption price; (v) procedures for surrendering noncertificated Series D Preferred Shares for payment of the redemption price; (vi) that dividends on the Series D Preferred Shares to be redeemed will cease to accumulate on such redemption date; and (vii) that payment of the redemption price and any accumulated and unpaid dividends will be made upon presentation and surrender of such Series D Preferred Shares. If fewer than all of the Series D Preferred Shares held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of Series D Preferred Shares held by such holder to be redeemed. Notwithstanding anything else to the contrary in this Certificate of Designations, the Trust shall not be required to provide notice to the holder of Series D Preferred Shares in the event such holder’s Series D Preferred Shares are redeemed in accordance with Sections 6(c) and 10 of this Certificate of Designations to preserve the Trust’s status as a REIT.
 
 
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(f)   If a redemption date falls after a Dividend Record Date and on or prior to the corresponding Dividend Payment Date, each holder of Series D Preferred Shares at the close of business of such Dividend Record Date shall be entitled to the dividend payable on such shares on the corresponding Dividend Payment Date notwithstanding the redemption of such shares on or prior to such Dividend Payment Date, and each holder of Series D Preferred Shares that surrenders its shares on such redemption date will be entitled to the dividends accruing after the end of the Dividend Period to which such Dividend Payment Date relates up to but excluding the redemption date. Except as provided herein, the Trust shall make no payment or allowance for unpaid dividends, whether or not in arrears, on Series D Preferred Shares for which a notice of redemption has been given.
 
(g)   All Series D Preferred Shares redeemed or repurchased pursuant to this Section 6, or otherwise acquired in any other manner by the Trust, shall be retired.
 
(h)   The Series D Preferred Shares shall have no stated maturity and shall not be subject to any sinking fund or mandatory redemption; provided , however , that the Series D Preferred Shares owned by a shareholder in excess of the applicable ownership limit shall be subject to the provisions of this Section 6 and Section 10 of this Certificate of Designations.
 
Section 7.   Special Optional Redemption by the Trust .
 
(a)   Upon the occurrence of a Change of Control, the Trust will have the option upon written notice mailed by the Trust, postage pre-paid, no fewer than 30 nor more than 60 days prior to the redemption date and addressed to the holders of record of Series D Preferred Shares to be redeemed at their respective addresses as they appear on the share transfer records of the Trust, to redeem Series D Preferred Shares, in whole or in part within 120 days after the first date on which such Change of Control occurred, for cash at $25.00 per share plus accrued and unpaid dividends, if any, to, but not including, the redemption date (the “ Special Optional Redemption Right ”). No failure to give such notice or any defect thereto or in the mailing thereof shall affect the validity of the proceedings for the redemption of any Series D Preferred Shares except as to the holder to whom notice was defective or not given. If, prior to the Change of Control Conversion Date, the Trust has provided or provides notice of redemption with respect to the Series D Preferred Shares (whether pursuant to the Redemption Right or the Special Optional Redemption Right), the holders of Series D Preferred Shares will not have the conversion right described below in Section 9.
 
 
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(b)   In addition to any information required by law or by the applicable rules of any exchange upon which the Series D Preferred Shares may be listed or admitted to trading, such notice shall state: (i) the redemption date; (ii) the redemption price; (iii) the number of Series D Preferred Shares to be redeemed; (iv) the place or places where the certificates, if any, representing Series D Preferred Shares are to be surrendered for payment of the redemption price; (v) procedures for surrendering noncertificated Series D Preferred Shares for payment of the redemption price; (vi) that dividends on the Series D Preferred Shares to be redeemed will cease to accumulate on the redemption date; (vii) that payment of the redemption price and any accumulated and unpaid dividends will be made upon presentation and surrender of such Series D Preferred Shares; (viii) that the Series D Preferred Shares are being redeemed pursuant to the Special Optional Redemption Right in connection with the occurrence of a Change of Control and a brief description of the transaction or transactions constituting such Change of Control; and (ix) that holders of the Series D Preferred Shares to which the notice relates will not be able to tender such Series D Preferred Shares for conversion in connection with the Change of Control and each Series D Preferred Share tendered for conversion that is selected, prior to the Change of Control Conversion Date, for redemption will be redeemed on the related redemption date instead of converted on the Change of Control Conversion Date. If fewer than all of the Series D Preferred Shares held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of Series D Preferred Shares held by such holder to be redeemed.
 
If fewer than all of the outstanding Series D Preferred Shares are to be redeemed pursuant to the Special Optional Redemption Right, the shares to be redeemed shall be selected pro rata (as nearly as practicable without creating fractional shares) by lot or in such other equitable method determined by the Trust that will not result in a violation of the Ownership Limit (as defined in Section 10(a)). If such redemption pursuant to the Special Optional Redemption Right is to be by lot and, as a result, any holder of Series D Preferred Shares would have actual ownership, Beneficial Ownership or Constructive Ownership (each as defined in Section 10(a)) in excess of the Ownership Limit (as defined in Section 10(a)) or such limit as permitted by the Board of Trustees or a committee thereof pursuant to Section 10, because such holder’s Series D Preferred Shares were not redeemed, or were only redeemed in part then, except as otherwise provided in the Declaration of Trust, the Trust shall redeem the requisite number of Series D Preferred Shares of such holder such that no holder will hold an amount of Series D Preferred Shares in excess of the applicable ownership limit, subsequent to such redemption.

(c)   If the Trust has given a notice of redemption pursuant to the Special Optional Redemption Right and has set aside sufficient funds for the redemption in trust for the benefit of the holders of the Series D Preferred Shares called for redemption, then from and after the redemption date, those Series D Preferred Shares will be treated as no longer being outstanding, no further dividends will accrue and all other rights of the holders of those Series D Preferred Shares will terminate. The holders of those Series D Preferred Shares will retain their right to receive the redemption price for their shares and any accrued and unpaid dividends through, but not including, the redemption date, without interest. So long as full cumulative dividends on the Series D Preferred Shares for all past dividend periods shall have been or contemporaneously are (i) declared and paid in cash, or (ii) declared and a sum sufficient for the payment thereof in cash is set apart for payment, nothing herein shall prevent or restrict the Trust’s right or ability to purchase, from time to time, either at a public or a private sale, all or any part of the Series D Preferred Shares at such price or prices as the Trust may determine, subject to the provisions of applicable law, including the repurchase of Series D Preferred Shares in open-market transactions duly authorized by the Board of Trustees.
 
 
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(d)   The holders of Series D Preferred Shares at the close of business on a Dividend Record Date will be entitled to receive the dividend payable with respect to the Series D Preferred Shares on the corresponding Dividend Payment Date notwithstanding the redemption of the Series D Preferred Shares pursuant to the Special Optional Redemption Right between such Dividend Record Date and the corresponding Dividend Payment Date or the Trust’s default in the payment of the dividend due. Except as provided herein, the Trust shall make no payment or allowance for unpaid dividends, whether or not in arrears, on Series D Preferred Shares for which a notice of redemption pursuant to the Special Optional Redemption Right has been given.
 
(e)   All Series D Preferred Shares redeemed or repurchased pursuant to this Section 7, or otherwise acquired in any other manner by the Trust, shall be retired.
 
Section 8.   Voting Rights .
 
(a)   Holders of the Series D Preferred Shares shall not have any voting rights, except as set forth in this Section 8.
 
(b)   Whenever dividends on any Series D Preferred Shares shall be in arrears for six or more consecutive or non-consecutive quarterly periods (a “ Preferred Dividend Default ”), the holders of such Series D Preferred Shares (voting together as a single class with all other classes or series of preferred shares upon which like voting rights have been conferred and are exercisable (“ Parity Preferred ”) shall be entitled to vote for the election of a total of two additional trustees of the Trust (the “ Preferred Trustees ”) and the entire Board of Trustees will be increased by two Trustees, until all dividends accumulated on such Series D Preferred Shares and Parity Preferred for the past Dividend Periods that have ended shall have been fully paid or declared and a sum sufficient for the payment thereof is set aside for payment.
 
(c)   The Preferred Trustees will be elected by a plurality of the votes cast in the election for a one-year term and each Preferred Trustee will serve until his or her successor is duly elected and qualified or until such Preferred Trustee’s right to hold the office terminates, whichever occurs earlier, subject to such Preferred Trustee’s earlier death, disqualification, resignation or removal. The election will take place at (i) either (A) a special meeting called in accordance with Section 8(d) below if the request is received more than 90 days before the date fixed for the Trust’s next annual or special meeting of beneficiaries or (B) the next annual or special meeting of beneficiaries if the request is received within 90 days of the date fixed for the Trust’s next annual or special meeting of beneficiaries, and (ii) at each subsequent annual meeting of beneficiaries, or special meeting held in place thereof, until all such dividends in arrears on the Series D Preferred Shares and each such class or series of outstanding Parity Preferred have been paid in full. A dividend in respect of Series D Preferred Shares shall be considered timely made if made within two Business Days after the applicable Dividend Payment Date if at the time of such late payment date there shall not be any prior Dividend Periods in respect of which full dividends were not timely made at the applicable Dividend Payment Date.
 
 
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(d)   At any time when such voting rights shall have vested, a proper officer of the Trust shall call or cause to be called, upon written request of holders of record of at least 10% of the outstanding Series D Preferred Shares and Parity Preferred, a special meeting of the holders of Series D Preferred Shares and each class or series of Parity Preferred by mailing or causing to be mailed to such holders a notice of such special meeting to be held not fewer than ten or more than 45 days after the date such notice is given. The record date for determining holders of the Series D Preferred Shares and Parity Preferred entitled to notice of and to vote at such special meeting will be the close of business on the third Business Day preceding the day on which such notice is mailed. At any such annual or special meeting, all of the holders of the Series D Preferred Shares and Parity Preferred, by plurality vote, voting together as a single class without regard to class or series will be entitled to elect two trustees on the basis of one vote per $25.00 of liquidation preference to which such Series D Preferred Shares and Parity Preferred are entitled by their terms (excluding amounts in respect of accumulated and unpaid dividends) and not cumulatively. The holder or holders of one-third of the Series D Preferred Shares and Parity Preferred voting as a single class then outstanding, present in person or by proxy, will constitute a quorum for the election of the Preferred Trustees except as otherwise provided by law. Notice of all meetings at which holders of the Series D Preferred Shares and the Parity Preferred shall be entitled to vote will be given to such holders at their addresses as they appear in the transfer records. At any such meeting or adjournment thereof in the absence of a quorum, subject to the provisions of any applicable law, a majority of the holders of the Series D Preferred Shares and Parity Preferred voting as a single class present in person or by proxy shall have the power to adjourn the meeting for the election of the Preferred Trustees, without notice other than an announcement at the meeting, until a quorum is present. If a Preferred Dividend Default shall terminate after the notice of a special meeting has been given but before such special meeting has been held, the Trust shall, as soon as practicable after such termination, mail or cause to be mailed notice of such termination to holders of the Series D Preferred Shares and the Parity Preferred that would have been entitled to vote at such special meeting.
 
(e)   If and when all accumulated dividends on such Series D Preferred Shares and all classes or series of Parity Preferred for the past dividend periods shall have been fully paid or declared and a sum sufficient for the payment thereof is set aside for payment, the right of the holders of Series D Preferred Shares and the Parity Preferred to elect such additional two directors shall immediately cease (subject to revesting in the event of each and every Preferred Dividend Default), and the term of office of each Preferred Trustee so elected shall terminate and the entire Board of Trustees shall be reduced accordingly. Any Preferred Trustee may be removed at any time with or without cause by the vote of, and shall not be removed otherwise than by the vote of, the holders of record of a majority of the outstanding Series D Preferred Shares and the Parity Preferred entitled to vote thereon when they have the voting rights set forth in Section 8(b) (voting as a single class). So long as a Preferred Dividend Default shall continue, any vacancy in the office of a Preferred Trustee may be filled by written consent of the Preferred Trustee remaining in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding Series D Preferred Shares when they have the voting rights described above (voting as a single class with all other classes or series of Parity Preferred). Each of the Preferred Trustees shall be entitled to one vote on any matter.
 
 
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(f)   So long as any Series D Preferred Shares remain outstanding, the affirmative vote or consent of the holders of two-thirds of the Series D Preferred Shares and each other class or series of preferred shares ranking on parity with the Series D Preferred Shares with respect to the payment of dividends and the distribution of assets upon liquidation, dissolution or winding up of the Trust upon which like voting rights have been conferred outstanding at the time, given in person or by proxy, either in writing or at a meeting (voting as a single class) will be required to: (i) authorize, create or issue, or increase the number of authorized or issued shares of, any class or series of capital shares ranking senior to the Series D Preferred Shares with respect to payment of dividends or the distribution of assets upon liquidation, dissolution or winding up of the Trust or reclassify any authorized capital shares into capital shares, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such capital shares; or (ii) amend, alter or repeal the provisions of the Declaration of Trust or the terms of the Series D Preferred Shares, whether by merger, consolidation, transfer or conveyance of all or substantially all of its assets or otherwise (an “ Event ”), so as to materially and adversely affect any right, preference, privilege or voting power of the Series D Preferred Shares; provided however , with respect to the occurrence of any of the Events set forth in (ii) above, so long as the Series D Preferred Shares remain outstanding with the terms thereof materially unchanged, taking into account that, upon the occurrence of an Event, the Trust may not be the surviving entity, the occurrence of such Event shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting power of Series D Preferred Shares, and in such case such holders shall not have any voting rights with respect to the occurrence of any of the Events set forth in (ii) above. In addition, if the holders of the Series D Preferred Shares receive the greater of the full trading price of the Series D Preferred Shares on the date of an Event set forth in (ii) above or the $25.00 liquidation preference per share of the Series D Preferred Shares pursuant to the occurrence of any of the Events set forth in (ii) above, then such holders shall not have any voting rights with respect to the Events set forth in (ii) above.
 
So long as any shares of Series D Preferred Shares remain outstanding, the holders of Series D Preferred Shares, voting together as a single class with the holders of all other classes and series of preferred shares ranking on parity with Series D Preferred Shares with respect to the payment of dividends and the distribution of assets upon liquidation, dissolution or winding up of the Trust upon which like voting rights have been conferred and with which holders of Series D Preferred Shares are entitled to vote together as a single class, also will have the exclusive right to vote on any amendment to the Declaration of Trust on which holders of Series D Preferred Shares are otherwise entitled to vote (as described above regarding material and adverse changes to the terms of the Series D Preferred Shares) and that would alter only the contract rights, as expressly set forth in the Declaration of Trust, of the Series D Preferred Shares and such other class(es) and series of such parity shares, and the holders of any other class(es) or series of capital shares will not be entitled to vote on such an amendment.

Holders of Series D Preferred Shares shall not be entitled to vote with respect to (A) any increase in the total number of authorized Common Shares or preferred shares, or (B) any increase in the number of authorized Series D Preferred Shares or the creation or issuance of any other class or series of capital shares, or (C) any increase in the number of authorized shares of any other class or series of capital shares, in each case referred to in clause (A), (B) or (C) above ranking on parity with or junior to the Series D Preferred Shares with respect to the payment of dividends and the distribution of assets upon liquidation, dissolution or winding up of the Trust. Except as set forth herein, holders of the Series D Preferred Shares shall not have any voting rights with respect to, and the consent of the holders of the Series D Preferred Shares shall not be required for, the taking of any corporate action, including an Event, regardless of the effect that such corporate action or Event may have upon the powers, preferences, voting power or other rights or privileges of the Series D Preferred Shares.
 
 
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(g)   The foregoing voting provisions of this Section 8 shall not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding Series D Preferred Shares shall have been redeemed or called for redemption upon proper notice and sufficient funds, in cash, shall have been deposited in trust to effect such redemption.
 
(h)   In any matter in which the Series D Preferred Shares may vote (as expressly provided herein), each Series D Preferred Share shall be entitled to one vote per $25.00 of liquidation preference
 
Section 9.   Conversion . The Series D Preferred Shares are not convertible into or exchangeable for any other property or securities of the Trust, except as provided in this Section 9.
 
(a)    Upon the occurrence of a Change of Control, each holder of Series D Preferred Shares shall have the right, unless, prior to the Change of Control Conversion Date, the Trust has provided or provides notice of its election to redeem the Series D Preferred Shares pursuant to the Redemption Right or Special Optional Redemption Right, to convert some or all of the Series D Preferred Shares held by such holder (the “Change of Control Conversion Right”) on the Change of Control Conversion Date into a number of Common Shares, per Series D Preferred Share to be converted (the “Common Share Conversion Consideration”) equal to the lesser of (A) the quotient obtained by dividing (i) the sum of (x) the $25.00 liquidation preference per share of Series D Preferred Shares to be converted plus (y) the amount of any accrued and unpaid dividends to, but not including, the Change of Control Conversion Date (unless the Change of Control Conversion Date is after a Dividend Record Date and prior to the corresponding Dividend Payment Date, in which case no additional amount for such accrued and unpaid dividends will be included in such sum) by (ii) the Common Share Price (as defined herein) and (B) 5.6306 (the “Share Cap”), subject to the immediately succeeding paragraph.
 
The Share Cap is subject to pro rata adjustments for any share splits (including those effected pursuant to a distribution of the Common Shares), subdivisions or combinations (in each case, a “Share Split”) with respect to the Common Shares as follows: the adjusted Share Cap as the result of a Share Split shall be the number of Common Shares that is equivalent to the product obtained by multiplying (i) the Share Cap in effect immediately prior to such Share Split by (ii) a fraction, the numerator of which is the number of Common Shares outstanding after giving effect to such Share Split and the denominator of which is the number of Common Shares outstanding immediately prior to such Share Split.
 
 
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In the case of a Change of Control pursuant to which Common Shares shall be converted into cash, securities or other property or assets (including any combination thereof) (the “ Alternative Form Consideration ”), a holder of Series D Preferred Shares shall receive upon conversion of such Series D Preferred Shares the kind and amount of Alternative Form Consideration which such holder would have owned or been entitled to receive upon the Change of Control had such holder held a number of Common Shares equal to the Common Share Conversion Consideration immediately prior to the effective time of the Change of Control (the “ Alternative Conversion Consideration ”; and the Common Share Conversion Consideration or the Alternative Conversion Consideration, as may be applicable to a Change of Control, shall be referred to herein as the “ Conversion Consideration ”).

In the event that holders of Common Shares have the opportunity to elect the form of consideration to be received in the Change of Control, the Conversion Consideration will be deemed to be the kind and amount of consideration actually received by holders of a majority of the Common Shares that voted for such an election (if electing between two types of consideration) or holders of a plurality of the Common Shares that voted for such an election (if electing between more than two types of consideration), as the case may be, and will be subject to any limitations to which all holders of Common Shares are subject, including, without limitation, pro rata reductions applicable to any portion of the consideration payable in the Change of Control.

The “Common Share Price” shall be (i) if the consideration to be received in the Change of Control by the holders of Common Shares is solely cash, the amount of cash consideration per Common Share or (ii) if the consideration to be received in the Change of Control by holders of Common Shares is other than solely cash (x) the average of the closing sale prices per Common Share (or, if no closing sale price is reported, the average of the closing bid and ask prices or, if more than one in either case, the average of the average closing bid and the average closing ask prices) for the ten consecutive trading days immediately preceding, but not including, the effective date of the Change of Control as reported on the principal U.S. securities exchange on which the Common Shares are then traded, or (y) the average of the last quoted bid prices for the Common Shares in the over-the-counter market as reported by OTC Markets Group, Inc. or similar organization for the ten consecutive trading days immediately preceding, but not including, the effective date of the Change of Control, if the Common Shares are not then listed for trading on a U.S. securities exchange.

(b)   No fractional Common Shares shall be issued upon the conversion of Series D Preferred Shares. In lieu of fractional shares, holders shall be entitled to receive the cash value of such fractional shares based on the Common Share Price.
 
(c)   Within 15 days following the occurrence of a Change of Control, a notice of occurrence of the Change of Control, describing the resulting Change of Control Conversion Right, shall be delivered to the holders of record of the Series D Preferred Shares at their addresses as they appear on the Trust’s share transfer records and notice shall be provided to the Transfer Agent. No failure to give such notice or any defect thereto or in the mailing thereof shall affect the validity of the proceedings for the conversion of any Series D Preferred Shares except as to the holder to whom notice was defective or not given. Each notice shall state: (i) the events constituting the Change of Control; (ii) the date of the Change of Control; (iii) the last date on which the holders of Series D Preferred Shares may exercise their Change of Control Conversion Right; (iv) the method and period for calculating the Common Share Price; (v) the Change of Control Conversion Date, which shall be a Business Day occurring within 20 to 35 days following the date of such notice; (vi) that if, prior to the Change of Control Conversion Date, the Trust has provided or provides notice of its election to redeem all or any portion of the Series D Preferred Shares, the holder will not be able to convert Series D Preferred Shares designated for redemption and such Series D Preferred Shares shall be redeemed on the related redemption date, even if they have already been tendered for conversion pursuant to the Change of Control Conversion Right; (vii) if applicable, the type and amount of Alternative Conversion Consideration entitled to be received per Series D Preferred Shares; (viii) the name and address of the paying agent and the conversion agent; and (ix) the procedures that the holders of Series D Preferred Shares must follow to exercise the Change of Control Conversion Right.
 
 
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(d)   The Trust shall issue a press release for publication on the Dow Jones & Company, Inc., Business Wire, PR Newswire or Bloomberg Business News (or, if such organizations are not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to broadly disseminate the relevant information to the public), or post notice on the Trust’s website, in any event prior to the opening of business on the first Business Day following any date on which the Trust provides notice pursuant to Section 9(c) above to the holders of Series D Preferred Shares.
 
(e)   In order to exercise the Change of Control Conversion Right, a holder of Series D Preferred Shares shall be required to deliver, on or before the close of business on the Change of Control Conversion Date, the certificates (if any) representing the Series D Preferred Shares to be converted, duly endorsed for transfer, together with a written conversion notice completed, to the Transfer Agent. Such notice shall state: (i) the relevant Change of Control Conversion Date; (ii) the number of Series D Preferred Shares to be converted; and (iii) that the Series D Preferred Shares are to be converted pursuant to the applicable provisions of this Certificate of Designation.  Notwithstanding the foregoing, if the Series D Preferred Shares are held in global form, such notice shall comply with applicable procedures of The Depository Trust Company (“DTC”).
 
(f)   Holders of Series D Preferred Shares may withdraw any notice of exercise of a Change of Control Conversion Right (in whole or in part) by a written notice of withdrawal delivered to the Transfer Agent prior to the close of business on the Business Day prior to the Change of Control Conversion Date. The notice of withdrawal must state: (i) the number of withdrawn Series D Preferred Shares; (ii) if certificated Series D Preferred Shares have been issued, the certificate numbers of the shares of withdrawn Series D Preferred Shares; and (iii) the number of Series D Preferred Shares, if any, which remain subject to the conversion notice. Notwithstanding the foregoing, if the Series D Preferred Shares are held in global form, the notice of withdrawal shall comply with applicable procedures of DTC.
 
(g)   Series D Preferred Shares as to which the Change of Control Conversion Right has been properly exercised and for which the conversion notice has not been properly withdrawn shall be converted into the applicable Conversion Consideration in accordance with the Change of Control Conversion Right on the Change of Control Conversion Date, unless, prior to the Change of Control Conversion Date, the Trust has provided or provides notice of its election to redeem such Series D Preferred Shares, whether pursuant to its Redemption Right or Special Optional Redemption Right. If the Trust elects to redeem Series D Preferred Shares that would otherwise be converted into the applicable Conversion Consideration on a Change of Control Conversion Date, such Series D Preferred Shares shall not be so converted and the holders of such shares shall be entitled to receive on the applicable redemption date $25.00 per share, plus any accrued and unpaid dividends thereon to, but not including, the redemption date.
 
 
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(h)   The Trust shall deliver the applicable Conversion Consideration no later than the third Business Day following the Change of Control Conversion Date.
 
(i)   Notwithstanding anything to the contrary contained herein, no holder of Series D Preferred Shares will be entitled to convert such Series D Preferred Shares into Common Shares to the extent that receipt of such Common Shares would cause the holder of such Common Shares (or any other person) to have actual ownership, Beneficial Ownership or Constructive Ownership (each as defined in Section 10(a)) in excess of the Ownership Limit (as defined in Section 10(a)) or such other limit as permitted by the Board of Trustees pursuant to Section 10).
 
Section 10.   Limitations on Ownership and Transfer .
 
(a)   (1)       Definitions .  For purposes of this Section 10, the following terms shall have the meanings set forth below:
 
“Beneficial Ownership” shall mean ownership of Capital Shares or Series D Preferred Shares by a Person who would be treated as an owner of such Capital Shares or Series D Preferred Shares either directly or indirectly through the application of Section 544 of the Code as modified by Section 856(h)(1)(B) of the Code. The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have correlative meanings.
 
“Beneficiary” shall mean a beneficiary of the Charitable Trust as determined pursuant to subparagraph (b)(5) of this Section 10.
 
“Capital Shares” shall mean all shares of beneficial interest of the Trust of any class or series, whether designated as common or preferred.
 
“Charitable Trust” shall mean the trust created pursuant to subparagraph (b)(1) of this Section 10.
 
“Charitable Trustee” shall mean the Trust, acting as trustee for the Charitable Trust, or any successor trustee appointed by the Trust.
 
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
 
“Constructive Ownership” shall mean ownership of Capital Shares or Series D Preferred Shares by a Person who would be treated as an owner of such Capital Shares or Series D Preferred Shares either directly or indirectly through the application of Section 318 of the Code, as modified by Section 856(d)(5) of the Code.  The terms “Constructive Owner,” “Constructively Owns” and “Constructively Owned” shall have correlative meanings.
 
 
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“Equity Shares” shall mean shares of beneficial interest in the Trust which are classified as Common Shares or Series D Preferred Shares.
 
“Market Price” on any date shall mean, with respect to the Common Shares or the Series D Preferred Shares, as applicable, the average of the daily market price for ten consecutive trading days immediately preceding the date.  The market price for each such trading day shall be determined as follows:  (A) if the Common Shares or the Series D Preferred Shares, as applicable, are listed or admitted to trading on any securities exchange or included for quotation on the NASDAQ-National Market System, the closing price, regular way, on such day, or if no such sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reliable quotation source designated by the Trust; (B) if the Common Shares or the Series D Preferred Shares, as applicable, are not listed or admitted to trading on any securities exchange or included for quotation on the NASDAQ-National Market System, the last reported sale price on such day or, if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reliable quotation source designated by the Trust; or (C) if the Common Shares or the Series D Preferred Shares, as applicable, are not listed or admitted to trading on any securities exchange or included for quotation on the NASDAQ-National Market System and no such last reported sale price or closing bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reliable quotation source designated by the Trust, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than ten days prior to the date in question) for which prices have been so reported; provided that if there are no bid and asked prices reported during the ten days prior to the date in question, the Market Price of the Common Shares or the Series D Preferred Shares, as applicable, shall be determined by the Trust acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate.
 
“Ownership Limit” shall mean whichever is more restrictive of (i) 9.8% of the value of the outstanding Equity Shares of the Trust, and (ii) 9.8% in value or by number (whichever is more restrictive) of the Series D Preferred Shares.
 
“Person” shall mean an individual, corporation, partnership, estate, trust (including a trust qualified under Section 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity and also includes a group as that term is used for purposes of Section 13(d)(3) of the Exchange Act.
 
“Purported Beneficial Transferee” shall mean, with respect to any purported Transfer that results in Excess Shares, the purported beneficial transferee for whom the Purported Record Transferee would have acquired Equity Shares if such transfer had been valid under subparagraph (a)(2) of this Section 10.
 
 
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“REIT” shall mean a Real Estate Investment Trust under Section 856 of the Code.
 
“Restriction Termination Date” shall mean the first day after the date hereof on which the Board of Trustees of the Trust determines that it is no longer in the best interests of the Trust to attempt to, or continue to, qualify as a REIT.
 
“Transfer” shall mean any sale, transfer, gift, hypothecation, pledge, assignment, devise or other disposition of Capital Shares or Series D Preferred Shares (including (i) the granting of any option or entering into any agreement for the sale, transfer or other disposition of Equity Shares or (ii) the sale, transfer, assignment or other disposition of any securities or rights convertible into or exchangeable for Capital Shares or Series D Preferred Shares), whether voluntary or involuntary, whether of record, constructively or beneficially and whether by operation of law or otherwise.
 
(2)   Except as provided in subparagraph (a)(9) of this Section 10, from the date hereof and prior to the Restriction Termination Date, no Person shall Beneficially Own or Constructively Own shares of the outstanding Equity Shares in excess of the Ownership Limit; (B) except as provided in subparagraph (a)(9) of this Section 10, from the date hereof and prior to the Restriction Termination Date, any Transfer that, if effective, would result in any Person Beneficially Owning or Constructively Owning Equity Shares in excess of the Ownership Limit shall be void ab initio as to the Transfer of that number of Equity Shares which would be otherwise Beneficially or Constructively Owned by such Person in excess of the Ownership Limit; and the intended transferee shall acquire no rights in such excess Equity Shares; (C) except as provided in subparagraph (a)(9) of this Section 10, from the date hereof and prior to the Restriction Termination Date, any Transfer that, if effective, would result in the Equity Shares being Beneficially Owned by fewer than 100 Persons (determined without reference to any rules of attribution) shall be void ab initio as to the Transfer of that number of shares which would be otherwise Beneficially or Constructively Owned by the transferee; and the intended transferee shall acquire no rights in such excess Equity Shares; and (D) from the date hereof and prior to the Restriction Termination Date, any Transfer of Equity Shares that, if effective, would result in the Trust’s being “closely held” within the meaning of Section 856(h) of the Code shall be void ab initio as to the Transfer of that number of Equity Shares which would cause the Trust to be “closely held” within the meaning of Section 856(h) of the Code; and the intended transferee shall acquire no rights in such Equity Shares.
 
(3)   (A) If, notwithstanding the other provisions contained in this Section 10, at any time after the date hereof and prior to the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Trust such that any Person would either Beneficially Own or Constructively Own Equity Shares  in excess of the Ownership Limit, then, except as otherwise provided in subparagraph (a)(9), such Equity Shares in excess of the Ownership Limit (rounded up to the nearest whole share) shall be automatically converted into an equal number of Excess Shares  (such conversion shall be effective as of the close of business on the business day prior to the date of the Transfer or change in capital structure); and (B) if, notwithstanding the other provisions contained in this Section 6, at any time after the date hereof and prior to the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Trust which, if effective, would cause the Trust to become “closely held” within the meaning of Section 856(h) of the Code, then the Equity Shares being Transferred or which are otherwise affected by the change in capital structure and which, in either case, would cause the Trust to be “closely held” within the meaning of Section 856(h) of the Code (rounded up to the nearest whole share) shall be automatically converted into an equal number Excess Shares.  Such conversion shall be effective as of the close of business on the business day prior to the date of the transfer or change in capital structure.
 
 
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(4)   If the Board of Trustees or its designees at any time determine in good faith that a transfer has taken place in violation of subparagraph (a)(2) of this Section 10 or that a Person intends to acquire or has attempted to acquire Beneficial Ownership or Constructive Ownership of any Equity Shares in violation of subparagraph (a)(2) of this Section 6, the Board of Trustees or its designees shall take such action as it or they deem advisable to refuse to give effect to or to prevent such Transfer, including, but not limited to, refusing to give effect to such transfer on the books of the Trust or instituting proceedings to enjoin such Transfer; provided , however , that any Transfers or attempted Transfers in violation of subparagraph (a)(2) of this Section 6 shall be void ab initio and automatically result in the conversion described in subparagraph (a)(3), irrespective of any action (or non-action) by the Board of Trustees or its designees.
 
(5)   Any Person who acquires or attempts to acquire Equity Shares in violation of subparagraph (a)(2) of this Section 10, or any Person who is a transferee such that Excess Shares results under subparagraph (a)(3) of this Section 10, shall immediately give written notice to the Trust of such event and shall provide to the Trust such other information as the Trust may request in order to determine the effect, if any, of such transfer or attempted transfer on the Trust’s status as a REIT.
 
(6)   From the date hereof and prior to the Restriction Termination Date:  (A) every Beneficial Owner or Constructive Owner of 5.0% or more (during any periods in which the number of such Beneficial Owners or Constructive Owners exceeds 1,999) or of more than 1% (during any periods in which the number of such Beneficial Owners or Constructive Owners is fewer than 2,000), or such lower percentages as required pursuant to regulations under the Code, of the outstanding Equity Shares of the Trust shall, within 30 days after January 1 of each year, give written notice to the Trust stating the name and address of such Beneficial Owner or Constructive Owner, the number of Equity Shares Beneficially Owned or Constructively Owned, and a description of how such shares are held.  Each such Beneficial Owner or Constructive Owner shall provide to the Trust such additional information as the Trust may request in order to determine the effect, if any, of such Beneficial Ownership on the Trust’s status as a REIT and to ensure compliance with the Ownership Limit; and (B) each Person who is a Beneficial Owner or Constructive Owner of Equity Shares and each Person (including the shareholder of record) who is holding Equity Shares for a Beneficial Owner or Constructive Owner shall provide to the Trust such information as the Trust may request in order to determine the Trust’s status as a REIT and to ensure compliance with the Ownership Limit.
 
(7)   Nothing contained in this Section 10 shall limit the authority of the Board of Trustees to take such other action as it deems necessary or advisable to protect the Trust and the interests of its shareholders by preservation of the Trust’s status as a REIT and to ensure compliance with the Ownership Limit.
 
 
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(8)   In the case of an ambiguity in the application of any of the provisions of paragraph (a) of this Section 10, including any definition contained in subparagraph (a)(1), the Board of Trustees shall have the power to determine the application of the provisions of this paragraph (a) with respect to any situation based on the facts known to it.
 
(9)   The Board of Trustees, upon receipt of a ruling from the Internal Revenue Service or an opinion of counsel or other evidence satisfactory to the Board of Trustees and upon such other conditions as the Board of Trustees may direct, in each case provided that the restrictions contained in subparagraph (a)(2)(C) and/or subparagraph (a)(2)(D) of this Section 10 will not be violated, may exempt a Person from the Ownership Limit.
 
(b)   (1)           Upon any purported Transfer that results in Excess Shares pursuant to subparagraph (a)(3) of this Section 10, such Excess Shares shall be deemed to have been transferred to the Trust, as Charitable Trustee of a Charitable Trust for the exclusive benefit of such Beneficiary or Beneficiaries to whom an interest in such Excess Shares may later be transferred pursuant to subparagraph (b)(5) of this Section 10.  Excess Shares so held in trust shall be issued and outstanding shares of the Trust.  The Purported Record Transferee shall have no rights in such Excess Shares except the right to designate a transferee of such Excess Shares upon the terms specified in subparagraph (b)(5) of this Section 10.  The Purported Beneficial Transferee shall have no rights in such Excess Shares except as provided in subparagraph (b)(5) of this Section 10.
 
(2)   Excess Shares shall not be entitled to any dividends.  Any dividend or distribution paid prior to the discovery by the Trust that the Equity Shares have been converted for Excess Shares shall be repaid to the Trust upon demand, and any dividend or distribution declared but unpaid shall be rescinded as void ab initio with respect to such Equity Shares.
 
(3)   Subject to the preferential rights of the Series D Preferred Shares, if any, as may be determined by the Board of Trustees of the Trust pursuant to Article Sixth of the By-laws, in the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Trust, each holder of Excess Shares shall be entitled to receive, ratably with each other holder of Common Shares and Excess Shares, that portion of the assets of the Trust available for distribution to its shareholders as the number of Excess Shares held by such holder bears to the total number of Common Shares and Excess Shares then outstanding.  The Trust, as holder of the Excess Shares in trust or, if the Trust has been dissolved, any trustee appointed by the Trust prior to its dissolution, shall distribute ratably to the Beneficiaries of the Charitable Trust, when determined, any such assets received in respect of the Excess Shares in any liquidation, dissolution or winding up of, or any distribution of the assets of, the Trust.
 
(4)   The holders of Excess Shares shall not be entitled to vote on any matters (except as may be required by the Laws of the State of Ohio applicable to the Trust).
 
(5)   (A) Excess Shares shall not be transferable.  The Purported Record Transferee may freely designate a Beneficiary of its interest in the Charitable Trust (representing the number of Excess Shares held by the Charitable Trust attributable to a purported transfer that resulted in the Excess Shares), if (i) the Excess Shares held in the Charitable Trust would not be Excess Shares in the hands of such Beneficiary and (ii) the Purported Beneficial Transferee does not receive a price for designating such Beneficiary that reflects a price per share for such Excess Shares that exceeds (x) the price per share such Purported Beneficial Transferee paid for the Equity Shares in the purported Transfer that resulted in the Excess Shares, or (y) if the Purported Beneficial Transferee did not give value for such Excess Shares (such as through a gift, devise or other transaction), a price per share equal to the Market Price on the date of the purported Transfer that resulted in the Excess Shares.  Upon such transfer of an interest in the Charitable Trust, the corresponding Excess Shares in the Charitable Trust shall be automatically converted for an equal number of Equity Shares, and such Equity Shares shall be transferred of record to the Beneficiary of the interest in the Charitable Trust designated by the Purported Record Transferee as described above if such Equity Shares would not be Excess Shares in the hands of such Beneficiary.  Prior to any transfer of any interest in the Charitable Trust, the Purported Record Transferee must give advance notice to the Trust of the intended transfer, and the Trust must have waived in writing its purchase rights under subparagraph (b)(6) of this Section 6; (B) notwithstanding the foregoing, if a Purported Beneficial Transferee receives a price for designating a Beneficiary of an interest in the Charitable Trust that exceeds the amounts allowable under subparagraph (b)(5)(A) of this Section 10, such Purported Beneficial Transferee shall pay, or cause the Beneficiary of the interest in the Charitable Trust to pay, such excess to the Trust.
 
 
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(6)   Excess Shares shall be deemed to have been offered for sale to the Trust, or its designee at a price per share equal to the lesser of (i) the price per share in the transaction that created such Excess Shares (or, in the case of devise or gift, the Market Price at the time of such devise or gift) and (ii) the Market Price on the date the Trust, or its designee, accepts such offer.  Subject to the satisfaction of any applicable requirements of Ohio law, the Trust shall have the right to accept such offer for a period of 90 days after the later of (i) the date of the transfer that resulted in such Excess Shares and (ii) the date the Board of Trustees determines in good faith that a Transfer resulting in Excess Shares has occurred, if the Trust does not receive a notice of such Transfer pursuant to subparagraph (a)(5) of this Section 10.
 
(c)   Nothing contained in this Section 10 or in any other provision of the By-laws shall limit the authority of the Board of Trustees to take such other action as it, in its sole discretion, deems necessary or advisable to protect the Trust and the interests of the shareholders by maintaining the Trust’s eligibility to be, and preserving the Trust’s status as, a qualified REIT under the Code.
 
(d)   If any of the foregoing restrictions on transfer of Excess Shares is determined to be void, invalid or unenforceable by any court of competent jurisdiction, the Purported Beneficial Transferee may be deemed, at the option of the Board of Trustees, to have acted as an agent of the Trust in acquiring such Excess Shares and to hold such Excess Shares on behalf of the Trust.
 
(e)   Nothing in this Section 10 precludes the settlement of transactions entered into through the facilities of the New York Stock Exchange.
 
(f)   Each certificate for Series D Preferred Shares shall bear the following legend summarizing the provisions of this Section 10.  Instead of such legend, the certificate may state that the Trust will furnish a full statement about certain restrictions on transferability to a shareholder on request and without charge.
 
 
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“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON OWNERSHIP AND TRANSFER CONTAINED IN THE BY-LAWS AND THE CERTIFICATE OF DESIGNATIONS FOR THE PURPOSE OF THE COMPANY’S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).  IF THE RESTRICTIONS ON OWNERSHIP OR TRANSFER ARE VIOLATED THE ISSUANCE OR TRANSFER RESULTING IN SUCH VIOLATION WILL BE VALID ONLY WITH RESPECT TO SUCH AMOUNT OF SECURITIES AS DOES NOT RESULT IN A VIOLATION OF THE COMPANY’S BY-LAWS OR CERTIFICATE OF DESIGNATIONS, AND SUCH ISSUANCE OR TRANSFER SHALL BE NULL AND VOID WITH RESPECT TO ANY EXCESS SECURITIES.  ALL TERMS IN THIS LEGEND NOT OTHERWISE DEFINED HEREIN HAVE THE MEANINGS ASCRIBED THERETO IN THE COMPANY’S BY-LAWS OR CERTIFICATE OF DESIGNATIONS AS THE SAME MAY BE FURTHER AMENDED FROM TIME TO TIME.”
 
Section 11.   Information Rights .  During any period in which the Trust is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act and any Series D Preferred Shares are outstanding, the Trust shall (i) transmit by mail or other permissible means under the Exchange Act to all holders of Series D Preferred Shares as their names and addresses appear in the Trust’s record books and without cost to such holders, copies of the Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K that the Trust would have been required to file with the Securities and Exchange Commission (the “ SEC ”) pursuant to Section 13 or 15(d) of the Exchange Act if the Trust were subject thereto (other than any exhibits that would have been required) within 15 days after the respective dates by which the Trust would have been required to filed such reports with the SEC if the Trust were subject to Section 13 or 15(d) of the Exchange Act, and (ii) within 15 days following written request, supply copies of such reports to any prospective holder of the Series D Preferred Shares.
 
Section 12.   Record Holders .  The Trust and the Transfer Agent may deem and treat the record holder of any Series D Preferred Shares as the true and lawful owner thereof for all purposes, and neither the Trust nor the Transfer Agent shall be affected by any notice to the contrary.
 
Section 13.   No Maturity or Sinking Fund . The Series D Preferred Shares have no maturity date, and no sinking fund has been established for the retirement or redemption of Series D Preferred Shares; provided , however , that the Series D Preferred Shares owned by a beneficiary in excess of the Ownership Limit or Aggregate Share Ownership Limit shall be subject to the provisions of Section 6 and Section 10 of this Certificate of Designations.
 
 
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Section 14.   No Conversion Rights . The Series D Preferred Shares shall not be convertible into or exchangeable for any other property or securities of the Trust or any other entity, except as otherwise provided herein.
 
Section 15.   Exclusion of Other Rights . The Series D Preferred Shares shall not have any preferences or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption other than expressly set forth in the Declaration of Trust and this Certificate of Designations.
 
Section 16.   Headings of Subdivisions . The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.
 
Section 17.   Severability of Provisions . If any preferences or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Series D Preferred Shares set forth in the Declaration of Trust and this Certificate of Designations are invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other preferences or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of Series D Preferred Shares set forth in the Declaration of Trust which can be given effect without the invalid, unlawful or unenforceable provision thereof shall, nevertheless, remain in full force and effect and no preferences or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Series D Preferred Shares herein set forth shall be deemed dependent upon any other provision thereof unless so expressed therein.
 
Section 18.   No Preemptive Rights . No holder of Series D Preferred Shares shall be entitled to any preemptive rights to subscribe for or acquire any unissued capital shares (whether now or hereafter authorized) or securities of the Trust convertible into or carrying a right to subscribe to or acquire capital shares.
 
 
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IN WITNESS WHEREOF, this Amended and Restated Certificate of Designations has been duly executed by the undersigned this 20th day of March, 2012.
 
WINTHROP REALTY TRUST
 
 
By:   /s/ Michael L. Ashner                                                                           
Michael L. Ashner
Chairman and Chief Executive Officer
 

 

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Phone: 216.621.0150
 Fax: 216.241.2824
www.hahnlaw.com
 
 
March 23, 2012

Winthrop Realty Trust
7 Bulfinch Place
Suite 500
Boston, MA 02114

Ladies and Gentlemen:
 
Solely for the purpose of this opinion letter, the undersigned has acted as Ohio counsel to Winthrop Realty Trust (the “Trust”).  This opinion letter (the “Opinion”) is furnished to you in connection with a supplement to the prospectus (the “Prospectus Supplement”) contained in that Registration Statement on Form S-3 of the Trust (Registration File No. 333-155761) (the “Registration Statement”) to be filed on or about March 21, 2012, with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), in connection with the  offering and issuance by the Trust of up to 3,220,000 newly-issued Series D Cumulative Redeemable Preferred Shares of the Trust, par value $1.00 (“Series D Preferred Shares”).  In connection with the issuance and sale of the Series D Preferred Shares, the Trust intends to reserve for issuance upon the potential conversion of the Series D Preferred Shares, 18,130,532 common shares of beneficial interest of the Trust, par value $1.00 per share (the “Conversion Shares”).
 
We have reviewed originals or copies, certified or otherwise identified to our satisfaction, of the following documents:
 
(a)  The Second Amended and Restated Declaration of Trust of the Trust dated as of May 21, 2009, together with all amendments thereto as of March 23, 2012.
 
(b) The By-Laws of the Trust as amended and restated November 3, 2009 together with any amendments thereto as of March 23, 2012.
 
(c)  The Prospectus Supplement to the Registration Statement as filed on or about March 20, 2012.
 
(d)  The Form of Certificate for Common Shares of Beneficial Interest.
 
(e) The Series D Cumulative Convertible Redeemable Preferred Shares of Beneficial Interest Certificate of Designations as filed by the Trust with the Commission as an Exhibit to the Registration Statement.
 
(f)  The resolutions of the Board of Trustees of the Trust dated March 13, 2012, relating to the authorization of the issuance of the Common Shares and the Series D Preferred Shares and the filing of the Prospectus Supplement to the Registration Statement.
 
 
 

 
 
Winthrop Realty Trust
March 23, 2012
Page 2 
 
(g)  Certificate of Full Force and Effect for the Trust, dated as of March 14, 2012, issued by the Secretary of State of Ohio.
 
(h)  Certificate from an officer of the Trust, dated as of March 23, 2012, as to certain factual matters.
 
(i)  Such other documents as we have deemed material to the opinions set forth below.
 
Based upon the foregoing, and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that:

(1)  The Trust is an unincorporated association in the form of a real estate investment trust organized and validly existing under the laws of the State of Ohio.

(2)  The Series D Preferred Shares to be issued by the Trust pursuant to the Prospectus Supplement and the Conversion Shares have been duly authorized.

(3) The Series D Preferred Shares to be issued by the Trust pursuant to the Prospectus Supplement and the Conversion Shares, when issued and sold in the manner contemplated by the Prospectus Supplement, will be validly issued, fully paid and non-assessable.

We are members of the bar of the State of Ohio and express no opinion as to any laws other than the laws of the State of Ohio and federal law of the United States of America as they exist on the date of this Opinion. We bring your attention to that fact that our legal opinions are an expression of professional judgment and are not a guaranty of result.

We hereby consent to the filing of this Opinion with the Commission as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

Very truly yours,

 
HAHN LOESER & PARKS LLP
 
EXECUTION VERSION
 
WINTHROP REALTY TRUST
 
2,800,000 9.25% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest
 
UNDERWRITING AGREEMENT
 
March 20, 2012
 
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
As Representative of the several Underwriters

Stifel, Nicolaus & Company, Incorporated
501 North Broadway
St. Louis, Missouri  63102
As Representative of the several Underwriters

Jefferies & Company, Inc.
520 Madison Avenue
New York, New York 10022
As Representative of the several Underwriters
 
Ladies and Gentlemen:
 
Winthrop Realty Trust, an unincorporated association in the form of an Ohio real estate investment trust (the “ Company ”), proposes to sell 2,800,000 shares (the “ Initial Securities ”) of the Company’s 9.25% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $1.00 per share (the “ Series D Preferred Shares ”).  In addition, the Company proposes to grant to the underwriters (the “ Underwriters ”) named in Schedule 1 attached to this agreement (this “ Agreement ”) an option to purchase up to 15% additional Series D Preferred Shares on the terms set forth in Section 3 (the “ Option Securities ”).  The Initial Securities and the Option Securities, if purchased, are hereinafter collectively called the “ Securities .”  This Agreement is to confirm the agreement concerning the purchase of the Securities from the Company by the Underwriters.  As part of the offering contemplated by this Agreement, the Underwriters have agreed to reserve 5,000 of the Initial Securities for offer and sale to Michael Ashner, his spouse and his adult children (the “ Reserved Securities ”) on the terms and subject to the conditions set forth in this Agreement.  Barclays Capital Inc., Stifel, Nicolaus & Company, Incorporated and Jefferies & Company, Inc. have agreed to act as representatives of the several Underwriters (in such capacity, collectively, the “ Representatives ”) in connection with the offering and sale of the Securities.
 
This offering is a re-opening of the Company’s original issuance of Series D Preferred Shares, which occurred on November 18, 2011.  As of the date of this Agreement, there are 1,600,000 Series D Preferred Shares issued and outstanding.
 
 
 

 
 
In addition to the Company, WRT Realty L.P., a Delaware limited partnership (the “ Operating Partnership ”), and FUR Advisors LLC, a Delaware limited liability company and the Advisor of the Company and the Operating Partnership (together with its affiliates, the “ Advisor ”) also confirm as follows their respective agreements with the Underwriters.
 
1.            Representations, Warranties and Agreements of the Company and the Operating Partnership .  Each of the Company and the Operating Partnership jointly and severally represents, warrants and agrees that:
 
(a)           A registration statement on Form S-3 (No. 333-155761) relating to the Securities has (i) been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the “ Securities Act ”), and the rules and regulations (the “ Rules and Regulations ”) of the Securities and Exchange Commission (the “ Commission ”) thereunder; (ii) been filed with the Commission under the Securities Act; and (iii) become effective under the Securities Act.  Copies of such registration statement and any amendment thereto have been delivered by the Company to the Underwriters.  As used in this Agreement:
 
(i)           “ Applicable Time ” means 1:30 P.M. (New York City time) on March 20, 2012;
 
(ii)           “ Effective Date ” means any date as of which any part of such registration statement relating to the Securities became, or is deemed to have become, effective under the Securities Act in accordance with the Rules and Regulations was declared effective by the Commission;
 
(iii)           “ Issuer Free Writing Prospectus ” means each “free writing prospectus” (as defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the Company or used or referred to by the Company in connection with the offering of the Securities;
 
(iv)           “ Preliminary Prospectus ” means any preliminary prospectus relating to the Securities included in such registration statement or filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, including any preliminary prospectus supplement thereto relating to the Securities;
 
(v)           “ Pricing Disclosure Package ” means, as of the Applicable Time, the most recent Preliminary Prospectus, together with the information included in Schedule 2 hereto and   each Issuer Free Writing Prospectus, if any, filed or used by the Company on or before the Applicable Time, other than a road show that is an Issuer Free Writing Prospectus under Rule 433 of the Rules and Regulations;
 
(vi)           “ Prospectus ” means the final prospectus relating to the Securities, including any prospectus supplement thereto relating to the Securities, as filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
 
(vii)           “ Registration Statement ” means, collectively, the various parts of such registration statement, each as amended as of the Effective Date for such part, including any Preliminary Prospectus or the Prospectus and all exhibits to such registration statement.
 
 
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Any reference to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Form S-3 under the Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as the case may be.  Any reference to the “ most recent Preliminary Prospectus ” shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) prior to or on the date hereof (including, for purposes hereof, any documents incorporated by reference therein prior to or on the date hereof).  Any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), after the date of such Preliminary Prospectus or the Prospectus, as the case may be, and incorporated by reference in such Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to include any annual report of the Company on Form 10-K filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date that is incorporated by reference in the Registration Statement.  The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or examination for such purpose has been instituted or threatened by the Commission. 
 
(b)           The Company was not at the time of initial filing of the Registration Statement and at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the Securities, is not on the date hereof and will not be on the applicable Closing Date (as defined herein) an “ineligible issuer” (as defined in Rule 405).  The Company has been since the time of initial filing of the Registration Statement and continues to be eligible to use Form S-3 for the offering of the Securities.
 
(c)           The Registration Statement conformed and will conform in all material respects on the Effective Date and on the applicable Closing Date, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the requirements of the Securities Act and the Rules and Regulations.  The most recent Preliminary Prospectus conformed, and the Prospectus will conform, in all material respects when filed with the Commission pursuant to Rule 424(b) and on the applicable Closing Date to the requirements of the Securities Act and the Rules and Regulations.  The documents incorporated by reference in any Preliminary Prospectus or the Prospectus conformed, and any further documents so incorporated will conform, when filed with the Commission, in all material respects to the requirements of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the Commission thereunder.
 
The Registration Statement did not, as of the Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein, which information is specified in Section 9(e).
 
 
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(d)              The Prospectus will not, as of its date and on the applicable Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein, which information is specified in Section 9(e).

(e)              The documents incorporated by reference in any Preliminary Prospectus or the Prospectus did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. 

(f)              The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein, which information is specified in Section 9(e).

(g)              Each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433), when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(h)              Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act and the Rules and Regulations on the date of first use, and the Company has complied with any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations.  The Company has not made any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives.  The Company has retained in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Rules and Regulations.

(i)              Each of the Company, the Operating Partnership and each of their subsidiaries (as defined in Section 18) has been duly organized, is validly existing and in good standing as a statutory business trust, partnership, corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing could not, in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, shareholders’ equity, properties, business or prospects of the Company, the Operating Partnership and each of their subsidiaries taken as a whole (a “ Material Adverse Effect ”); each of the Company, the Operating Partnership and each of their subsidiaries has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged.  The Company and the Operating Partnership do not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21 to the Company’s Annual Report on Form 10-K for the most recent fiscal year (or wholly owned subsidiaries whose names may be omitted pursuant to Item 601(b)(21) of Regulation S-K).  None of the subsidiaries of the Company is a “significant subsidiary” (as defined in Rule 405). 
 
 
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(j)              The Company has an authorized capitalization as set forth in each of the most recent Preliminary Prospectus and the Prospectus, and all of the issued shares of beneficial interest of the Company have been duly authorized and validly issued, are fully paid and non-assessable, conform to the description thereof contained in the most recent Preliminary Prospectus and were issued in compliance with federal and state securities laws and not in violation of any preemptive right, resale right, right of first refusal or similar right.  All of the Company’s options, warrants and other rights to purchase or exchange any securities for shares of the Company’s shares of beneficial interest have been duly authorized and validly issued, conform to the description thereof contained in the most recent Preliminary Prospectus and were issued in compliance with federal and state securities laws.  All of the issued shares of equity capital of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

(k)              The Securities to be issued and sold by the Company to the Underwriters hereunder have been duly authorized and, upon payment and delivery in accordance with this Agreement, will be validly issued, fully paid and non-assessable, will conform to the description thereof contained in the most recent Preliminary Prospectus, will be issued in compliance with federal and state securities laws and will be free of statutory and contractual preemptive rights, rights of first refusal and similar rights.

(l)              The Company will immediately contribute the net proceeds from the sale of the Initial Securities to the Operating Partnership for a number of 9.25% Series D Cumulative Redeemable Preferred Units (the “ Preferred Units ”) equal to the number of Initial Securities issued.  Such Preferred Units will be, on or prior to the Closing Date, duly authorized for issuance by the Operating Partnership to the holder thereof and at the Closing Date, will be validly issued, fully paid and non-assessable.  The issuance of such Preferred Units will be exempt from registration or qualification under the Securities Act and applicable state securities laws.  None of such Preferred Units to be issued will be in violation of the statutory or contractual preemptive rights, rights of first refusal or similar rights of any securityholder of the Operating Partnership or any other person or entity.

(m)              To the extent any portion of the over-allotment option is exercised, the Company will immediately contribute the net proceeds from the sale of the Option Securities to the Operating Partnership for a number of Preferred Units equal to the number of Option Securities issued (the “ Option Units ”).  The issuance of the Option Units has been duly authorized and, when issued and delivered by the Operating Partnership, the Option Units will be validly issued, fully paid and non-assessable.  The issuance of such Option Units will be exempt from registration or qualification under the Securities Act and applicable state securities laws.
 
 
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(n)              The shares of Common Shares of Beneficial Interest, par value $1.00 per share, of the Company (the “ Common Shares ”) issuable upon conversion of the securities (the “ Conversion Shares ”) have been duly authorized and, when issued upon conversion of the Securities in accordance with the terms of the amendment and restatement of the Certificate of Designations of the Company setting forth the terms of the Securities (the “ Certificate of Designations ”), will be validly issued and fully paid and non-assessable; and the issuance of the Conversion Shares will not be subject to the preemptive, rights of first refusal or other similar rights of any securityholder of the Company, the Operating Partnership or any other person or entity.  The Conversion Shares conform in all material aspects to the rights set forth in the instruments defining the same.  No holder of the Conversion Shares will be subject to personal liability by reason of being such a holder.  The Company has duly and validly reserved such Conversion Shares for issuance upon conversion of the Securities.  The certificates to be issued to evidence title to the Conversion Shares will be in substantially the form filed as an exhibit to the Registration Statement.

(o)              Except as described in the Pricing Disclosure Package and the Prospectus, there are no contracts, agreements or understandings between the Company or the Operating Partnership and any person that would give rise to a valid claim against the Company or any of the Underwriters for a brokerage commission, finder’s fee or other like payment in connection with the offering, issuance and sale of the Securities.

(p)              The Company and the Operating Partnership have, as applicable, all requisite trust or partnership power and authority to execute, deliver and perform their respective obligations under this Agreement.  The execution, delivery and performance of this Agreement by the Company and the Operating Partnership and their consummation, as applicable, of the transactions contemplated herein and in the Pricing Disclosure Package (including the Company’s issuance and sale of the Securities, its use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds” and any issuance of the Conversion Shares upon conversion of the Securities) have been duly authorized by all necessary corporate or other action.  The Certificate of Designations will be, prior to the Closing Date, duly authorized, executed and filed by the Company with the Secretary of State of the State of Ohio (“ Ohio Secretary of State ”).  The amendment to the Amended and Restated Agreement of the Operating Partnership setting forth the terms of the Preferred Units (the “ Operating Partnership Agreement Amendment ”) will be, prior to the Closing Time, duly authorized, executed and delivered.  The Operating Partnership Agreement Amendment will, prior to the Closing Date, constitute a legally valid and binding agreement of the Operating Partnership enforceable against the Operating Partnership in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or affecting creditors’ rights and general principles of equity and except as rights to indemnity and condition thereunder may be limited by applicable law or policies underlying such law.
 
 
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(q)              The execution, delivery and performance of this Agreement by each of the Company and the Operating Partnership, the consummation of the transactions contemplated hereby, the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in the most recent Preliminary Prospectus and any issuance of the Conversion Shares upon conversion of the Securities will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company and the Operating Partnership and their subsidiaries, as the case may be, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which any of the Company and the Operating Partnership or any of their subsidiaries is a party or by which the Company and the Operating Partnership or any of their subsidiaries is bound or to which any of the property or assets of the Company and the Operating Partnership or any of their subsidiaries is subject; (ii) result in any violation of the provisions of the Organizational Documents of the Company and the Operating Partnership or any of their subsidiaries; or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company and the Operating Partnership or any of their subsidiaries or any of their properties or assets.  The term “ Organizational Documents ” as used herein means (a) in the case of a corporation, its charter and bylaws; (b) in the case of a limited or general partnership, its partnership certificate, certificate of formation or similar organizational document and its partnership agreement (including the Operating Partnership Agreement Amendment); (c) in the case of a limited liability company, its articles of organization, certificate of formation or similar organizational documents and its operating agreement; (d) in the case of a trust, its declaration of trust, certificate of formation or similar organizational document (including the Certificate of Designations) and its trust agreement or other similar agreement; and (e) in the case of any other entity, the organizational and governing documents of such entity.

(r)              The form of certificate used to evidence the Series D Preferred Shares complies and, upon its issuance, the form of certificate used to evidence the Conversion Shares will comply, in all material respects with all applicable statutory requirements, with any applicable requirements of the Organizational Documents of the Company and the requirements of the New York Stock Exchange.

(s)              No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Company and the Operating Partnership or any of their subsidiaries or any of their properties or assets is required for the execution, delivery and performance of this Agreement by the Company and the Operating Partnership, the consummation of the transactions contemplated hereby, the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in the most recent Preliminary Prospectus and any issuance of the Securities and the Conversion Shares upon conversion of the Securities, except for the registration of the Securities under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Securities by the Underwriters.

(t)              Except as described in the most recent Preliminary Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or included in the offering contemplated by this Agreement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act.
 
 
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(u)              The Company has not sold or issued any securities that would be integrated with the offering of the Securities contemplated by this Agreement pursuant to the Securities Act, the Rules and Regulations or the interpretations thereof by the Commission.

(v)              None of the Company, the Operating Partnership nor any of their subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change in the shares of beneficial interest, long-term debt or net current assets of the Company, the Operating Partnership or any of their subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, shareholders’ equity, properties, management, business or prospects of the Company, the Operating Partnership and their subsidiaries taken as a whole, in each case except as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

(w)              Since the date as of which information is given in the most recent Preliminary Prospectus, neither the Company nor the Operating Partnership has (i) incurred any liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its shares of beneficial interest.

(x)              The historical financial statements (including the related notes and supporting schedules) included or incorporated by reference in the most recent Preliminary Prospectus comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act and present fairly the financial condition, results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis throughout the periods involved.

(y)              PricewaterhouseCoopers LLP, who has certified certain financial statements of the Company and its consolidated subsidiaries and Lex-Win Concord LLC, whose reports appear in the most recent Preliminary Prospectus or are incorporated by reference therein and who has delivered the initial letter referred to in Section 8(f) hereof was an independent registered public accounting firm as required by the Securities Act, the Exchange Act and the Rules and Regulations during the periods covered by the financial statements on which it reported contained or incorporated by reference in the most recent Preliminary Prospectus.
 
 
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(z)              The statistical and market-related data included under the captions “Prospectus Supplement Summary” in the most recent Preliminary Prospectus and the consolidated financial statements of the Company and its subsidiaries included or incorporated by reference in the most recent Preliminary Prospectus are based on or derived from sources that the Company believes to be reliable and accurate in all material respects and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.

(aa)              None of the Company, the Operating Partnership or any subsidiary is, and as of the applicable Closing Date and, after giving effect to the offer and sale of the Securities and the application of the proceeds therefrom as described under “Use of Proceeds” in the most recent Preliminary Prospectus and the Prospectus, none of them will be, (i) an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended (the “ Investment Company Act ”), and the rules and regulations of the Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

(bb)              All of the subsidiaries in which the Company or any subsidiary owns less than 100% of the outstanding equity interests (the “ Joint Ventures ”) are listed on Schedule 3 hereto.  The Company’s or subsidiary’s ownership in such Joint Venture is set forth in Schedule 3 .

(cc)              Except as described in the most recent Preliminary Prospectus, there are no legal or governmental proceedings pending to which the Company, the Operating Partnership or any of their subsidiaries is a party or of which any property or assets of the Company, the Operating Partnership or any of their subsidiaries is the subject that would, in the aggregate, reasonably be expected to have a Material Adverse Effect or would, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of the transactions contemplated hereby; and to the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or others.

(dd)              Michael Ashner, on behalf of himself, his spouse and his adult children, has, as of the date hereof, executed and delivered to the Representatives, a lock-up agreement in the Form of Exhibit A hereto (the “ Lock-Up Agreement ”).  All share options that may be issued by the Company at any time during the Lock-Up Period (as defined in Section 6(a)(ix)) will provide, in each case pursuant to written share option agreements or similar agreements executed and delivered by the holders of such share options, that the holders of such share options will not effect any public sale or distribution (including sales pursuant to Rule 144 under the Securities Act) of any shares of Preferred Shares of Beneficial Interest of the Company (the “ Preferred Shares ”) or any equity securities similar to or ranking on par with or senior to the Preferred Shares, or any securities convertible into or exchangeable or exercisable for the Preferred Shares or such similar, parity or senior equity securities, including without limitation Preferred Units, during the Lock-Up Period; and, during the Lock-Up Period, the Company will not cause or permit any waiver, release, modification or amendment of any such restriction on transfer without the prior written consent of the Representatives.

(ee)              Except as described in the most recent Preliminary Prospectus, no relationship, direct or indirect, exists between or among the Company or the Operating Partnership, on the one hand, and the directors, officers, trustees, managers, advisors, stockholders, shareholders, partners, customers or suppliers of the Company or the Operating Partnership or any of their subsidiaries or the Advisor, on the other hand, that is required to be described in the most recent Preliminary Prospectus which is not so described. 
 
 
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(ff)              Neither the Company nor the Operating Partnership has any employees.

(gg)              The Company has no “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“ ERISA ”)).

(hh)              The Company and the Operating Partnership and each of their subsidiaries own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, know-how, software, systems and technology (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses and have no reason to believe that the conduct of their respective businesses will conflict with, and have not received any notice of any claim of conflict with, any such rights of others.

(ii)              The Company, the Operating Partnership and each of their subsidiaries have filed all federal, state, local and foreign income and franchise tax returns required to be filed through the date hereof, subject to permitted extensions and have paid all taxes due thereon, and no tax deficiency has been determined adversely to the Company, the Operating Partnership or any of their subsidiaries, nor does the Company or Operating Partnership have any knowledge of any tax deficiencies that could, in the aggregate, reasonably be expected to have a Material Adverse Effect.

(jj)              There are no transfer taxes or other similar fees or charges under Federal law or the laws of any state, or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance by the Company or sale by the Company of the Securities.

(kk)              Neither the Company or the Operating Partnership nor any of their subsidiaries (i) is in violation of its Organizational Documents, (ii) is in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is in violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation or default could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

(ll)              There is and has been no failure on the part of the Company and any of the Company’s trustees or officers or the Advisor, in their capacities as such, to comply with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith. 
 
 
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(mm)              The Company has implemented controls and other procedures that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms and is accumulated and communicated to the Company’s management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure; and the Company makes and keeps books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company; and the Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and, to the Company’s and the Operating Partnership’s knowledge, neither the Company, the Operating Partnership nor any subsidiary, nor any employee or agent thereof, has made any payment of funds of the Company, the Operating Partnership or any of the subsidiaries, as the case may be, or received or retained any funds, and no funds of the Company, the Operating Partnership or any of their subsidiaries, as the case may be, have been set aside to be used for any payment, in each case in violation of any law, rule or regulation. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, since the Company’s inception, there has been no material weakness in the Company’s internal control over financial reporting (whether or not remediated).

(nn)              Since the date of the filing of the Company’s Annual Report on Form 10-K for the year ended December 31, 2011, except as disclosed in the Pricing Disclosure Package and the Prospectus, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies in such controls.

(oo)              The Company, the Operating Partnership and each of their subsidiaries have such permits, licenses, patents, franchises, certificates of need and other approvals or authorizations of governmental or regulatory authorities (“ Permits ”) as are necessary under applicable law to own their properties and conduct their businesses in the manner described in the most recent Preliminary Prospectus, except for any of the foregoing that could not, in the aggregate, reasonably be expected to have a Material Adverse Effect; each of the Company, the Operating Partnership and their subsidiaries has fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could not reasonably be expected to have a Material Adverse Effect. 
 
 
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(pp)              The Company, the Operating Partnership and each of their subsidiaries (i) are, and at all times prior hereto were, in compliance with all laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal requirements of any governmental authority, including without limitation any international, national, state, provincial, regional, or local authority, relating to the protection of human health or safety, the environment, or natural resources, or to hazardous or toxic substances or wastes, pollutants or contaminants (“ Environmental Laws ”) applicable to such entity, which compliance includes, without limitation, obtaining, maintaining and complying with all permits and authorizations and approvals required by Environmental Laws to conduct their respective businesses, except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (ii) have not received notice of any actual or alleged violation of Environmental Laws, or of any potential liability for or other obligation concerning the presence, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants.  Except as described in the most recent Preliminary Prospectus, (A) there are no proceedings that are pending, or known to be contemplated, against the Company, the Operating Partnership or any of their subsidiaries under Environmental Laws in which a governmental authority is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (B) the Company, the Operating Partnership and their subsidiaries are not aware of any violations of Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (C) none of the Company, the Operating Partnership and their subsidiaries anticipates material capital expenditures relating to Environmental Laws.

(qq)              No subsidiary of the Company including, without limitation, the Operating Partnership, is currently prohibited, directly or indirectly, from paying any distributions or dividends to the Company, from making any other distribution on such subsidiary’s equity capital, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company, except as described in the most recent Preliminary Prospectus, so long as such subsidiary remains in compliance with the covenants (" Subsidiary Covenants ").

(rr)              Neither the Company, the Operating Partnership nor any of their subsidiaries, nor, to the knowledge of the Company, the Operating Partnership, the Advisor, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or the Advisor or any of their subsidiaries, has (i) used any trust or corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment. 

(ss)              The operations of the Company, the Operating Partnership and their subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions within the United States, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Money Laundering Laws ”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company, the Operating Partnership or any of their subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened, except, in each case, as would not reasonably be expected to have a Material Adverse Effect.  The Company has no operations outside the United States.
 
 
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(tt)              Neither the Company, the Operating Partnership nor any of their subsidiaries nor, to the knowledge of the Company, the Advisor, any trustee, officer, agent, employee or affiliate of the Company, the Operating Partnership or the Advisor or any of their subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

(uu)              The Company has not distributed and, prior to the later to occur of any Closing Date and completion of the distribution of the Securities, will not distribute any offering material in connection with the offering and sale of the Securities other than any Preliminary Prospectus, the Prospectus, or any Issuer Free Writing Prospectus to which the Representatives have consented in accordance with Section 1(a) or 6(a)(vi).

(vv)              The Company has not taken and will not take, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

(ww)              The Securities have been, or will be prior to the Closing Date, approved for listing, subject to official notice of issuance, on the New York Stock Exchange.

(xx)              No consent of, with or from any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance of this Agreement or consummation of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Securities and such consents as may be required under state securities or blue sky laws or the by-laws and rules of the Financial Industry Regulatory Authority (“ FINRA ”) in connection with the purchase and distribution of the Securities by the Underwriters, each of which has been obtained and is in full force and effect. 

(yy)              The Second Amended and Restated Advisory Agreement dated March 5, 2009 and amended as of February 28, 2012, between the Company, the Operating Partnership and the Advisor (the “ Advisory Agreement ”), (i) has been duly and validly authorized by the Company, (ii) has been duly and validly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
 
 
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(zz)              Except as described in the most recent Preliminary Prospectus, the Company, the Operating Partnership or any of their subsidiaries, and the joint ventures in which the Company, the Operating Partnership or any of their subsidiaries has an ownership interest, have good and marketable title to all real properties and all other properties and assets owned by them (each, a “ Property ” and collectively, the “ Properties ”), in each case free from liens, encumbrances and defects, except where the existence of any lien, encumbrance or defect would not have a Material Adverse Effect; the Company, the Operating Partnership or any of their subsidiaries has obtained an owner’s title insurance policy in an amount at least equal to the cost of acquisition from a title insurance company with respect to each of its real estate properties, except where the failure to obtain such owner’s title insurance policy would not have a Material Adverse Effect; except as disclosed in the most recent Preliminary Prospectus, the Company, the Operating Partnership and their subsidiaries hold any leased real or personal property under valid and enforceable leases, except where the invalidity or unenforceability of such leases, individually or collectively, would not have a Material Adverse Effect; no person has an option or right of first refusal to purchase all or part of any Property or any interest therein for other than the fair market value, except where the exercise of such option or right would not have a Material Adverse Effect; neither the Company, the Operating Partnership nor any of their subsidiaries has knowledge of any pending or threatened condemnation proceeding, zoning change, or other proceeding or action that will in any material manner affect the size of, use of, improvements on, construction on or access to any of the Properties.

(aaa)              Commencing with its taxable year ended December 31, 2001 and, to the best of the Company’s knowledge, for its taxable years ended December 31, 2000 and December 31, 1999, the Company has been organized and has operated in conformity with the requirements for qualification as a REIT under the Internal Revenue Code of 1986, as amended (the “ Code ”), and the Company’s current and proposed method of operations will enable it to continue to meet the requirements for taxation as a REIT under the Code.  The Company is not aware of any fact or circumstance that would adversely affect or otherwise alter the Company’s ability to qualify as a REIT under the Code at any time.  

(bbb)              The Operating Partnership has been and will continue to be treated as a partnership for federal income tax purposes and not as a corporation or association taxable as a corporation. 

(ccc)              Each of the Company, the Operating Partnership and their subsidiaries maintains insurance (issued by insurers of recognized financial responsibility) of the types and in the amounts generally deemed adequate, if any, for their respective businesses and consistent with insurance coverage maintained by similar companies in similar businesses, including, but not limited to, insurance covering real and personal property owned or leased by the Company, the Operating Partnership and their subsidiaries against theft, damage, destruction, acts of vandalism and all other risks customarily insured against, all of which insurance is in full force and effect.  
 
 
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(ddd)              There are no material outstanding loans or advances or material guarantees of indebtedness by the Company, the Operating Partnership or any of their subsidiaries to or for the benefit of any of the executive officers or trustees of the Company or any of their family members.

(eee)              Except as disclosed in the Pricing Disclosure Package and the Prospectus, neither the Company, the Operating Partnership nor any of their subsidiaries or any of its affiliates has any outstanding borrowings from, or is a party to any line of credit, credit agreement or other credit facility or otherwise has a borrowing relationship with, any bank or other lending institution affiliated with any Underwriter, and, except as disclosed in the Pricing Disclosure Package and the Prospectus, neither the Company nor the Operating Partnership intends to use any of the proceeds from the sale of the Securities to repay any debt owed to any of the Underwriters or any of their respective affiliates.

(fff)              Neither the Company nor any of its affiliates (i) is required to register as a “broker” or “dealer” in accordance with regulations promulgated under the Exchange Act, or (ii) directly, or indirectly through one or more intermediaries, controls or has any other association with (within the meaning of the By-laws of FINRA) any member firm of FINRA.  To the Company’s knowledge, there are no affiliations or associations between any member of FINRA and any of the Company’s officers, trustees or 5% or greater securityholders that are required to be disclosed in the Registration Statement, the Prospectus and the Pricing Disclosure Package that are not so disclosed.

(ggg)              The Company’s investment guidelines and operating policies described in the Registration Statement, the Prospectus and the Pricing Disclosure Package accurately reflect the current intentions of the Company and the Advisor with respect to the operation of the Company’s business, and no material deviation from such guidelines or policies is contemplated.

(hhh)              Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company nor the Operating Partnership has sold, issued or distributed any shares of Preferred Shares or Preferred Units.

Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.

2.            Representations and Warranties of the Advisor .  The Advisor represents, warrants and agrees that:
 
(a)           The information regarding the Advisor in the Prospectus, each Preliminary Prospectus and the Pricing Disclosure Package is true and correct in all material respects. 
 
 
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(b)           The Advisor has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware and has all requisite power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; and the Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing as would not have a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition (financial or otherwise) of the Advisor, or its ability to perform its obligations under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Advisor is a party or by which it may be bound, or to which any of the property or assets of the Advisor is subject (collectively, the “ Advisor Agreements and Instruments ”) (the “ Advisor Material Adverse Effect ”).
 
(c)           This Agreement and the Advisory Agreement (i) has been duly and validly authorized by the Advisor, (ii) has been duly and validly executed and delivered by the Advisor and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) has not been conflicted with or has not been breached or violated, and (iv) conforms to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
 
(d)           Except as would not constitute an Advisor Material Adverse Effect, the Advisor is not in violation of its Organizational Documents or in default in the performance or observance of any Advisor Agreements and Instruments, or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or except for such defaults that would not result in a material adverse effect on the assets, business, operations, earnings, properties, prospects or condition, (financial or otherwise) of the Advisor, or its ability to perform its obligations under the Advisory Agreement.  Except as would not constitute an Advisor Material Adverse Effect, the consummation of the transactions contemplated herein and in the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor nor will such action result in any violation of the provisions of the Organizational Documents of the Advisor or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Advisor or any of its subsidiaries or any of their respective assets, properties or operations.
  
(e)           There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Advisor, threatened, against or affecting the Advisor that would reasonably likely result in an Advisor Material Adverse Effect.
 
(f)           (A) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any stockholder, equity holder or creditor of the Advisor, (C) no waiver or consent under any Advisory Agreement and Instrument and (D) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the performance by the Advisor of the transactions contemplated hereby, on the terms contemplated by the Pricing Disclosure Package and the Prospectus, except (1) such as have been already obtained and (2) such, the failure of which to have obtained, would not reasonably be expected to have an Advisor Material Adverse Effect.
 
 
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(g)           The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus and the Advisory Agreements and Instruments.
 
(h)           The Advisor possesses such governmental licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct its business as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus; the Advisor is in compliance with the terms and conditions of all such governmental licenses, except where the failure so to comply would not, individually or in the aggregate, reasonably likely result in an Advisor Material Adverse Effect; all of the governmental licenses are valid and in full force and effect, except when the invalidity of such governmental licenses or the failure of such governmental licenses to be in full force and effect would not reasonably likely result in an Advisor Material Adverse Effect; and the Advisor has not received any notice of proceedings relating to the revocation or modification of any such governmental licenses which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably likely result in an Advisor Material Adverse Effect.
 
(i)           Except as disclosed in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, the Advisor has not been notified that any executive, key employee or significant group of employees of the Advisor plans to terminate employment with the Advisor.  Neither the Advisor nor any executive or key employee of the Advisor is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Advisor as described in the Registration Statement, the Pricing Disclosure Package, each Preliminary Prospectus and the Prospectus, except where such termination or violation would not constitute an Advisor Material Adverse Effect.
    
(j)           The Advisor operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions effectuated by it on behalf of the Company are executed in accordance with its management’s general or specific authorization; and (B) access to the Company’s assets is permitted only in accordance with its management’s general or specific authorization.
 
(k)           The Advisor is not prohibited by the Investment Advisers Act of 1940, as amended (the “ Advisers Act ”), or the rules and regulations thereunder, from performing its obligations under the Advisory Agreements and Instruments as described in the Pricing Disclosure Package and the Prospectus.
 
 
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3.            Purchase of the Securities by the Underwriters .  On the basis of the representations and warranties contained in, and subject to the terms and conditions of, this Agreement, the Company agrees to sell 2,800,000 Initial Securities to the several Underwriters, and each of the Underwriters, severally and not jointly, agrees to purchase the number of shares of the Initial Securities set forth opposite that Underwriter’s name in Schedule 1 hereto.  Each Underwriter shall be obligated to purchase from the Company that number of shares of the Initial Securities that represents the same proportion of the number of shares of the Initial Securities to be sold by the Company as the number of shares of the Initial Securities set forth opposite the name of such Underwriter in Schedule 1 represents of the total number of shares of the Initial Securities to be purchased by all of the Underwriters pursuant to this Agreement. The respective purchase obligations of the Underwriters with respect to the Initial Securities shall be rounded between the Underwriters to avoid fractional shares, as the Representatives may determine.
 
In addition, the Company grants to the Underwriters an option to purchase up to 15% additional Option Securities.  Such option is exercisable in the event that the Underwriters sell more shares of Series D Preferred Shares than the number of Initial Securities in the offering and as set forth in Section 5 hereof.  Each Underwriter agrees, severally and not jointly, to purchase the number of shares of Option Securities (subject to such adjustments to eliminate fractional shares as the Underwriters may determine) that bears the same proportion to the total number of shares of the Option Securities to be sold on such Option Securities Closing Date as the number of shares of Initial Securities set forth in Schedule 1 hereto opposite the name of such Underwriter bears to the total number of shares of the Initial Securities.
 
The price of both the Initial Securities and any Option Securities purchased by the Underwriters (including the Reserved Securities) shall be $24.2510 per share.  The price of the Reserved Securities purchased by Michael Ashner, his spouse and his adult children shall be $25.0385 per share.  Michael Ashner has agreed to, and shall, acquire, on behalf of himself, his spouse and his adult children, all of the Reserved Securities.
 
The Company shall not be obligated to deliver any of the Initial Securities or Option Securities to be delivered on the applicable Closing Date, except upon payment for all such Securities to be purchased on such Closing Date as provided herein.   
 
4.            Offering of Securities by the Underwriters .  Upon authorization by the Representatives of the release of the Initial Securities, the Underwriters propose to offer the Initial Securities for sale upon the terms and conditions to be set forth in the Prospectus.
 
5.            Delivery of and Payment for the Securities .  Delivery of and payment for the Initial Securities shall be made at 10:00 A.M. New York City time, on the third (3 rd ) full business day following the date of this Agreement or at such other date or place as shall be determined by agreement between the Representatives and the Company.  This date and time are sometimes referred to as the “ Initial Closing Date .”  Delivery of the Initial Securities shall be made to the Underwriters for the account of each Underwriter against payment by the Underwriters of the aggregate purchase price of the Initial Securities being sold by the Company to or upon the order of the Company of the purchase price by wire transfer in immediately available funds to the accounts specified by the Company.  Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder.  The Company shall deliver the Initial Securities through the facilities of DTC unless the Representatives shall otherwise instruct.
 
 
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The option granted in Section 3 will expire 30 days after the date of this Agreement and may be exercised in whole or from time to time in part by written notice being given to the Company by the Underwriters; provided that if such date falls on a day that is not a business day, the option granted in Section 3 will expire on the next succeeding business day.  Such notice shall set forth the aggregate number of Option Securities as to which the option is being exercised, the names in which the Option Securities are to be registered, the denominations in which the Option Securities are to be issued and the date and time, as determined by the Representatives, when the Option Securities are to be delivered; provided , however , that this date and time shall not be earlier than the Initial Closing Date nor earlier than the second business day after the date on which the option shall have been exercised nor later than the fifth business day after the date on which the option shall have been exercised.  Each date and time the shares of Option Securities are delivered is sometimes referred to as an “ Option Securities Closing Date ,” and the Initial Closing Date and any Option Securities Closing Date are sometimes each referred to as a “ Closing Date .”
 
Delivery of the Option Securities by the Company and payment for the Option Securities by the Underwriters shall be made at 10:00A.M. New York City time, on the date specified in the corresponding notice described in the preceding paragraph or at such other date or place as shall be determined by agreement between the Representatives and the Company.  On the Option Securities Closing Date, the Company shall deliver or cause to be delivered the Option Securities to the Underwriters for the account of each Underwriter against payment by the Underwriters of the aggregate purchase price of the Option Securities being sold by the Company to or upon the order of the Company of the purchase price by wire transfer in immediately available funds to the accounts specified by the Company.  Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder.  The Company shall deliver the Option Securities through the facilities of DTC unless the Representatives shall otherwise instruct.
  
6.           Further Agreements of the Company, the Advisor and the Underwriters.
 
(a)           The Company agrees:
 
(i)           To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Closing Date except as provided herein; to advise the Underwriters, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriters with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities (the “ Prospectus Delivery Period ”); to advise the Underwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
 
 
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(ii)           To furnish promptly to each Underwriter and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
 
(iii)           To deliver promptly to each Underwriter such number of the following documents as each such Underwriter shall reasonably request:  (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus and (D) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus is required at any time during the Prospectus Delivery Period  and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Underwriters and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Underwriters may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
 
(iv)                To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Underwriters, be required by the Securities Act or requested by the Commission; to prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form approved by the Representatives and substantially attached as Schedule 2 hereto and to file such term sheet with the Commission pursuant to Rule 433(d) within the time required by such Rule.

(v)           Until the later of (x) the termination of the Prospectus Delivery Period or (y) the Option Securities Closing Date, prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to each Underwriter and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which shall not be unreasonably delayed;
 
 
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(vi)           Not to make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives;
 
(vii)           To comply with all applicable requirements of Rule 433 with respect to any Issuer Free Writing Prospectus; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Underwriters and, upon its request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Underwriters may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
 
(viii)           As soon as practicable after the Effective Date and in any event not later than 16 months after the date hereof, to make generally available to the Company’s security holders and to deliver to Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations;   
 
(ix)           For a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “ Lock-Up Period ”), not to, and cause the Operating Partnership not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Preferred Shares or any equity securities similar to or ranking on par with or senior to the Preferred Shares, or securities convertible into or exchangeable for Preferred Shares or such similar, parity or senior equity securities, including without limitation Preferred Units, or sell or grant options, rights or warrants with respect to any Preferred Shares, securities convertible into or exchangeable for Preferred Shares or such similar, parity or senior equity securities, (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Preferred Shares or such similar, parity or senior equity interest, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Preferred Shares or such similar, parity or senior equity interest or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Preferred Shares, securities convertible, exercisable or exchangeable into Preferred Shares, any such similar, parity or senior equity interest or any other securities of the Company, or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives, and to cause Michael Ashner to furnish to the Representatives, prior to the Initial Closing Date, a Lock-Up Agreement, on behalf of himself, his spouse and his adult children.  Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives waive such extension in writing;
 
 
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(x)           To apply the net proceeds from the sale of the Securities being sold by the Company as set forth in the Prospectus;
 
(xi)           The Company will use its best efforts to effect the listing of the Securities and the Conversion Shares on the New York Stock Exchange;

(xii)           The Company will duly authorize, execute, deliver and file with the Ohio Secretary of State the Certificate of Designations prior to the Closing Date;

(xiii)           The Company will duly authorize, execute and deliver the Operating Partnership Agreement Amendment prior to the Closing Date; and

(xiv)           The Company will reserve and keep available at all times the maximum number of Conversion Shares issuable upon conversion of the Securities until such time as such Conversion Shares have been issued or the Securities have been redeemed.
 
(b)        The Advisor agrees with each Underwriter and with the Company that, during the Prospectus Delivery Period, it shall notify the Underwriters and the Company of the occurrence of any material events respecting its activities, affairs or condition, financial or otherwise, and the Advisor will forthwith supply such information to the Company as shall be necessary in the opinion of counsel to the Company and the Underwriters for the Company to prepare any necessary amendment or supplement to the Pricing Disclosure Package or the Prospectus so that, as amended or supplemented, the Pricing Disclosure Package or Prospectus will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading. 
 
(c)           Each Underwriter severally agrees that it shall not include any “issuer information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “ Permitted Issuer Information ”); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as used in this Section 6(c), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information.
 
 
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7.          Expenses .  The Company agrees, whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with (a) the authorization, issuance, sale and delivery of the Securities and any stamp duties or other taxes payable in that connection, and the preparation and printing of certificates for the Securities; (b) the preparation, printing and filing under the Securities Act of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto; (c) the distribution of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, or any document incorporated by reference therein, all as provided in this Agreement; (d) the production and distribution of this Agreement and any other related documents in connection with the offering, purchase, sale and delivery of the Securities; (e) any required review by FINRA of the terms of sale of the Securities (including related reasonable fees and expenses of counsel to the Underwriters); (f) the listing of the Securities and Conversion Shares on the New York Stock Exchange; (g) the preparation, printing and distribution of a Blue Sky Memorandum (including related fees and expenses of counsel to the Underwriters); (h) the investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including, without limitation, expenses associated with any electronic roadshow, travel and lodging expenses of the representatives and officers of the Company and the cost of any aircraft chartered in connection with the road show; and (i) all other costs and expenses incident to the performance of the obligations of the Company (which also includes the fees and disbursements of the Company’s counsel, accountants and other advisors).

8.            Conditions of Underwriters’ Obligations .  The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on each Closing Date, of the representations and warranties of the Company and the Operating Partnership contained herein, to the performance by the Company and the Operating Partnership of their respective obligations hereunder, and to each of the following additional terms and conditions: 
 
(a)           The Prospectus shall have been timely filed with the Commission in accordance with Section 6(a)(i); the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with.
 
(b)           No Underwriter shall have discovered and disclosed to the Company on or prior to such Closing Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Goodwin Procter LLP, counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
 
(c)           All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
 
 
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(d)           Katten Muchin Rosenman LLP, counsel for the Company and the Operating Partnership, shall have furnished to the Representatives its written opinion and negative assurance letter, addressed to the Representatives and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the forms attached hereto as Exhibits B-1 and B-2 .  Hahn Loeser & Parks LLP, Ohio counsel for the Company, shall have furnished to the Representatives its written opinion, addressed to the Representatives and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C .  Katten Muchin Rosenman LLP, tax counsel for the Company and the Operating Partnership, shall have furnished to the Representatives its written opinion, addressed to the Representatives and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D .  Post, Heymann & Koffler LLP, counsel to the Company, the Operating Partnership and the Advisor, shall have furnished to the Representatives its written opinion and negative assurance letter, addressed to the Representatives and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the forms attached hereto as Exhibits E-1 and E-2 .
 
(e)           The Representatives shall have received from Goodwin Procter LLP, counsel for the Underwriters, such opinion or opinions, dated such Closing Date, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. 
 
(f)           At the time of execution of this Agreement, the Representatives shall have received from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Representatives and dated the date hereof (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
 
 
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(g)           With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “ initial letter ”), the Company shall have furnished to the Representatives a letter (the “ bring-down letter ”) of such accountant, addressed to the Representatives and dated such Closing Date (i) confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and is in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
 
(h)            The Company shall have furnished to the Representatives a certificate, dated on or before the date of this Agreement, of its Chief Financial Officer regarding certain financial information and other matters ordinarily covered by accountants’ “comfort letters” with respect to which the Company’s accountants were not otherwise able to provide such “comfort” (“ CFO Certificate ”).

(i)                The Company shall have furnished to the Representatives certificates, dated such Closing Date,
 
(i)           of its Chief Executive Officer and its Chief Financial Officer stating that:
 
(A)         The representations, warranties and agreements of the Company in Section 1 are true and correct on and as of such Closing Date, and the Company has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date;
 
(B)          No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and 
 
(C)          They have carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Closing Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
 
(ii)     of its Chief Financial Officer confirming in all material respects the conclusions and findings set forth in the CFO Certificate regarding certain financial information and other matters ordinarily covered by accountants’ “comfort letters” with respect to which the Company’s accountants were not otherwise able to provide such “comfort”.      
 
 
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(j)           The Advisor shall have furnished to the Representatives a certificate of the President of the Advisor, dated such Closing Date, to the effect that (i) the representations and warranties of the Advisor in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date, and (ii) the obligations of the Advisor to be performed at or prior to the Closing Date under or pursuant to this Agreement have been duly performed.
 
(k)           The general partner of the Operating Partnership, in its capacity as such, shall have furnished to the Representatives a certificate, dated such Closing Date, stating that:
 
(i)           The representations, warranties and agreements of the Operating Partnership in Section 1 are true and correct on and as of such Closing Date, and the Operating Partnership has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; and
 
(ii)           It has carefully examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in its opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Closing Date, or (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth.
 
(l)           Except as described in the most recent Preliminary Prospectus, (i) neither the Company, the Operating Partnership nor any of their subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) since such date there shall not have been any change in the shares of beneficial interest or equity capital or long-term debt or net current assets of the Company, the Operating Partnership or any of their subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, shareholders’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on such Closing Date on the terms and in the manner contemplated in the Prospectus.
 
(m)           Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
 
 
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(n)           Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following:  (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Securities being delivered on such Closing Date on the terms and in the manner contemplated in the Prospectus.
 
(o)               The New York Stock Exchange shall have approved the Securities and Conversion Shares for listing, subject only to official notice of issuance. 

(p)               The Lock-Up Agreement set forth on Schedule 2, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Closing Date.
 
(q)            In connection with the purchase of the Securities hereunder and for so long as any of such Securities are held by any Underwriter, the Company shall hereby exempt such Underwriter, effective as of the Effective Date, from the Ownership Limit (as defined in the Company’s By-laws).

(r)              On the Closing Date, the Certificate of Designations shall have been accepted for record by the Ohio Secretary of State and shall be effective under Ohio law.

(s)              On the Closing Date, the Representatives shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.

(t)             No amendment or supplement to the Registration Statement, the Prospectus, any preliminary prospectus or any Issuer Free Writing Prospectus shall be filed to which the Underwriters shall have reasonably objected in writing.
 
 
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All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
 
9.            Indemnification and Contribution .
 
(a)           The Company and the Operating Partnership shall jointly and severally indemnify and hold harmless each Underwriter, its directors, officers and employees and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Securities), to which that Underwriter, director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in (A) any Preliminary Prospectus, the Registration Statement, the Prospectus or in any amendment or supplement thereto, (B) any Issuer Free Writing Prospectus or in any amendment or supplement thereto or (C) any Permitted Issuer Information used or referred to in any “free writing prospectus” (as defined in Rule 405) used or referred to by any Underwriter, (D) any “road show” (as defined in Rule 433) not constituting an Issuer Free Writing Prospectus (a “ Non-Prospectus Road Show ”) or (E) any Blue Sky application or other document prepared or executed by the Company (or based upon any written information furnished by the Company for use therein) specifically for the purpose of qualifying any or all of the Securities under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a “ Blue Sky Application ”) or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information, any Non-Prospectus Road Show or any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each Underwriter and each such director, officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter, director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided , however , that neither the Company nor the Operating Partnership shall be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplement thereto or in any Permitted Issuer Information, any Non-Prospectus Road Show or any Blue Sky Application, in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company by or on behalf of any Underwriter specifically for inclusion therein, which information consists solely of the information specified in Section 9(e).  The foregoing indemnity agreement is in addition to any liability which the Company or Operating Partnership may otherwise have to any Underwriter or to any director, officer, employee, or controlling person of that Underwriter. 
 
 
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(b)           Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, the Operating Partnership, its trustees, officers, general partner and employees, and each person, if any, who controls the Company of the Operating Partnership within the meaning of Section 15 of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company, the Operating Partnership, or any such trustee, general partner, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Non-Prospectus Road Show or Blue Sky Application, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Non-Prospectus Road Show or Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company by or on behalf of that Underwriter specifically for inclusion therein, which information is limited to the information set forth in Section 9(e).  The foregoing indemnity agreement is in addition to any liability that any Underwriter may otherwise have to the Company, the Operating Partnership, or any such trustee, general partner, officer, employee or controlling person.
 
(c)           Promptly after receipt by an indemnified party under this Section 9 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 9, notify the indemnifying party in writing of the claim or the commencement of that action; provided , however , that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 9 except to the extent it has been materially prejudiced by such failure and, provided , further , that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 9.  If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party.  After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 9 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided , however , that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and those other indemnified parties and their respective directors, officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought under this Section 9 if (i) the indemnified party and the indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party and its directors, officers, employees and controlling persons shall have reasonably concluded that there may be legal defenses available to them that are different from or in addition to those available to the indemnifying party; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnified parties or their respective directors, officers, employees or controlling persons, on the one hand, and the indemnifying party, on the other hand, and represen­tation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and in any such event the fees and expenses of such separate counsel shall be paid by the indemnifying party.  No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include any findings of fact or admissions of fault or culpability as to the indemnified party, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. 
 
 
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(d)           If the indemnification provided for in this Section 9 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 9(a) or 9(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company, and the Operating Partnership, on the one hand, and the Underwriters, on the other, from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Operating Partnership, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations.  The relative benefits received by the Company and the Operating Partnership, on the one hand, and the Underwriters, on the other, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities purchased under this Agreement (before deducting expenses) received by the Company, as set forth in the table on the cover page of the Prospectus, on the one hand, and the total underwriting discounts and commissions received by the Underwriters with respect to the common shares of the Securities purchased under this Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand.  The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission.  The Company, the Operating Partnership, and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 9(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to herein.  The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 9(d) shall be deemed to include, for purposes of this Section 9(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.  Notwithstanding the provisions of this Section 9(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the net proceeds from the sale of the Securities underwritten by it exceeds the amount of any damages that such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  The Underwriters’ obligations to contribute as provided in this Section 9(d) are several in proportion to their respective underwriting obligations and not joint.
 
 
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(e)           The Underwriters severally confirm and the Company and the Operating Partnership acknowledge and agree that the statements set forth on the cover page of, and the concession and reallowance figures and the paragraph relating to stabilization by the Underwriters appearing under the caption “Underwriting” in, the most recent Preliminary Prospectus and the Prospectus are correct and constitute the only information concerning such Underwriter furnished in writing to the Company by or on behalf of the Underwriters specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Non-Prospectus Road Show.

  10.       Defaulting Underwriter .   If, on any Delivery Date, an Underwriter defaults in the performance of its obligations under this Agreement, the remaining non-defaulting Underwriters shall be obligated to purchase the Securities that the defaulting Underwriter agreed but failed to purchase on such Closing Date; provided, however , that the remaining non-defaulting Underwriters shall not be obligated to purchase any of the Securities on such Closing Date if the total number of shares of the Securities that the defaulting Underwriter agreed but failed to purchase on such date exceeds 9.09% of the total number of shares of the Securities to be purchased on such Closing Date, and the remaining non-defaulting Underwriters shall not be obligated to purchase more than 110% of the number of shares of the Securities that it agreed to purchase on such Closing Date pursuant to the terms of Section 3.  If the foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or those other underwriters satisfactory to the remaining non-defaulting Underwriters who so agree, shall have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon among them, all the shares of Securities to be purchased on such Closing Date.  If the remaining non-defaulting Underwriters or other underwriters satisfactory to the remaining non-defaulting Underwriters do not elect to purchase the shares that the defaulting Underwriter agreed but failed to purchase on such Closing Date, this Agreement (or, with respect to any Option Securities Closing Date, the obligation of the Underwriters to purchase, and of the Company to sell, the Option Securities) shall terminate without liability on the part of the non-defaulting Underwriters or the Company, except that the Company will continue to be liable for the payment of expenses to the extent set forth in Sections 7 and 12.  As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
 
 
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Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company for damages caused by its default.  If the other Underwriters are obligated or agree to purchase the Securities of a defaulting or withdrawing Underwriter, either the remaining non-defaulting Underwriters or the Company may postpone the Closing Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Prospectus or in any other document or arrangement.
 
11.            Termination .  The obligations of the Underwriters hereunder may be terminated by the Underwriters by notice given to and received by the Company prior to delivery of and payment for the Initial Securities if, prior to that time, any of the events described in Sections 8(k), 8(l) and 8(m) shall have occurred or if the Underwriters shall decline to purchase the Securities for any reason permitted under this Agreement.
 
12.            Reimbursement of Underwriters’ Expenses .  If (a) the Company shall fail to tender the Securities for delivery to the Underwriters for any reason or (b) the Underwriters shall decline to purchase the Securities for any reason permitted under this Agreement (other than pursuant to Section 8(m)), the Company will reimburse the Underwriters for all reasonable out-of-pocket expenses (including fees and disbursements of counsel) incurred by the Underwriters in connection with this Agreement and the proposed purchase of the Securities, and upon demand the Company shall pay the full amount thereof to the Underwriters.  If this Agreement is terminated pursuant to Section 10 by reason of the default of one or more Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account of those expenses. 
 
13.            Research Analyst Independence .  The Company acknowledges that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment banking divisions.  The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriters’ investment banking divisions.  The Company acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
 
 
32

 
 
14.            No Fiduciary Duty .  The Company and the Operating Partnership acknowledge and agree that in connection with this offering, sale of the Securities or any other services the Underwriters may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters:  (i) no fiduciary or agency relationship between the Company, the Operating Partnership and any other person, on the one hand, and the Underwriters, on the other, exists; (ii) the Underwriters are not acting as advisors, expert or otherwise, to the Company or the Operating Partnership, including, without limitation, with respect to the determination of the public offering price of the Securities, and such relationship between the Company and the Operating Partnership, on the one hand, and the Underwriters, on the other, is entirely and solely commercial, based on arms-length negotiations; (iii) any duties and obligations that the Underwriters may have to the Company and the Operating Partnership shall be limited to those duties and obligations specifically stated herein; and (iv) the Underwriters and their respective affiliates may have interests that differ from those of the Company and the Operating Partnership.  The Company and the Operating Partnership hereby waive any claims that the Company and the Operating Partnership may have against the Underwriters with respect to any breach of fiduciary duty in connection with this offering.
 
15.            Notices, Etc.   All statements, requests, notices and agreements hereunder shall be in writing, and:
 
(a)           if to the Representatives, shall be delivered or sent by mail or facsimile transmission to Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention:  Syndicate Registration (fax no.:  646-834-8133), with a copy, in the case of any notice pursuant to Section 9(b) to the Director of Litigation, Office of the General Counsel, Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, to Stifel, Nicolaus & Company, Incorporated, 501 North Broadway, St. Louis, Missouri  63102, Attention: Syndicate Department (fax no.: 443-224-1273), to Jefferies & Company, Inc., 520 Madison Avenue, New York, New York 10022, Attention: General Counsel, and with a copy to Goodwin Procter LLP, the New York Times Building, 620 Eighth Avenue, New York, New York 10018 (fax no.: 212-355-3333), Attention: Mark Schonberger; and 
 
(b)           if to the Company or the Operating Partnership, shall be delivered or sent by mail or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Carolyn Tiffany (fax no.: 617-570-4710).
 
Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof.  
 
16.            Persons Entitled to Benefit of Agreement .  This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company, the Operating Partnership, the Advisor and their respective successors.  This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (A) the representations, warranties, indemnities and agreements of the Company, the Operating Partnership and the Advisor contained in this Agreement shall also be deemed to be for the benefit of the directors, officers and employees of the Underwriters and each person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Securities Act and (B) the indemnity agreement of the Underwriters contained in Section 9(b) of this Agreement shall be deemed to be for the benefit of the trustees of the Company, the officers of the Company who have signed the Registration Statement and any person controlling the Company or the Operating Partnership within the meaning of Section 15 of the Securities Act.  Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 16, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
 
 
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17.            Survival .  The respective indemnities, representations, warranties and agreements of the Company, the Operating Partnership, the Advisor and the Underwriters contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any investigation made by or on behalf of any of them or any person controlling any of them.
 
18.            Definition of the Terms “Business Day” and “Subsidiary” .  For purposes of this Agreement, (a) “ business day ” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close and (b) “ subsidiary ” has the meaning set forth in Rule 405.
 
19.            Governing Law .  This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
 
20.            Counterparts .  This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument. 
 
21.            Headings .  The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
 

  [Signature page follows]
 
 
34

 
 
If the foregoing correctly sets forth the agreement among the Company, the Operating Partnership, the Advisor, the Underwriters and, with respect to Section 3 only, Michael Ashner, please indicate your acceptance in the space provided for that purpose below.
 
 
Very truly yours,
 
     
 
WINTHROP REALTY TRUST
 
       
 
By:
/s/   
  Name:  
  Title:  
       
 
 
WRT REALTY L.P.
 
 
By: Winthrop Realty Trust, its general partner
 
       
 
By:
/s/   
  Name:  
  Title:  
       

 
FUR ADVISORS, LLC
 
       
 
By:
/s/   
  Name:  
  Title:  
       

 
For Purposes of Section 3 Only :

MICHAEL ASHNER
 
     
  /s/   
     

 
Accepted :

BARCLAYS CAPITAL INC.
 
     
By:
/s/   
 
Authorized Representative
 
 
 
STIFEL, NICOLAUS & COMPANY, INCORPORATED
 
     
By:
/s/   
 
Authorized Representative
 
 
 
JEFFERIES & COMPANY, INC.
 
     
By:
/s/   
 
Authorized Representative
 
 
For themselves and as Representatives of the other Underwriters named in Schedule I hereto.
 
[Signature Page to Underwriting Agreement]
 
 
 

 
 
SCHEDULE 1

Underwriters
Number of Shares of
Initial Securities
Barclays Capital Inc.
952,000
Stifel, Nicolaus & Company, Incorporated
952,000
Jefferies & Company, Inc.
560,000
Credit Suisse Securities (USA) LLC
140,000
KeyBanc Capital Markets Inc.
140,000
JMP Securities LLC
56,000
   
Total
2,800,000
 
 
 

 
 
SCHEDULE 2
 
FINAL TERM SHEET
 
Issuer Free Writing Prospectus
Filed Pursuant to Rule 433
Registration No. 333-155761
March 20, 2012
 
Pricing Term Sheet
 
Winthrop Realty Trust
 
9.25% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest
(Liquidation Preference $25.00 per Share)
 
March 20, 2012
 
Issuer:
 
Winthrop Realty Trust
     
Security:
 
9.25% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest (“Series D Preferred Shares”)
     
Number of Shares:
 
2,800,000 shares (3,220,000 shares if the underwriters’ over-allotment option is exercised in full)
     
Public Offering Price:
 
$25.0385 per share including accrued dividends; $70,107,800 total (not including the underwriters’ option to purchase additional shares)
     
Underwriting Discounts and Commissions:
 
$0.7875 per share; $2,205,000 total (not including the underwriters’ option to purchase additional shares)
     
No Maturity:
 
Perpetual (unless redeemed by the Issuer on or after November 28, 2016 or pursuant to its special optional redemption right, or converted by a holder in connection with a Change of Control (defined below))
     
Pricing Date:
 
March 20, 2012
     
Settlement Date:
 
March 23, 2012 (T + 3)
     
Liquidation Preference:
 
$25.00 per share, plus accrued and unpaid dividends
     
Dividend Rate:
 
9.25% per annum of the Liquidation Preference (equivalent to a fixed annual rate of $2.3125 per share).  Dividends on the Series D Preferred Shares will accrue whether or not (i) we have earnings, (ii) there are funds legally available for the payment of such dividends and (iii) such dividends are authorized or declared.
     
Dividend Payment Dates:
 
Quarterly in arrears on or about the last day of March, June, September and December of each year.  The first dividend payment will be for a full quarter and paid on June 29, 2012.
 
 
 

 
 
     
Optional Redemption:
 
On and after November 28, 2016, the Issuer may, at its option, redeem the Series D Preferred Shares, in whole or in part, at any time or from time to time, for cash at a redemption price of $25.00 per share, plus any accrued and unpaid dividends (whether or not authorized or declared) up to but excluding the redemption date (subject to the special optional redemption right described below).
     
Special Optional Redemption:
 
Upon the occurrence of a “Change of Control”, the Issuer may, at its option, redeem the Series D Preferred Shares, in whole or in part within 120 days after the first date on which such Change of Control occurred, by paying $25.00 per share, plus any accrued and unpaid dividends to, but not including, the date of redemption. If, prior to the Change of Control Conversion Date (defined below), the Issuer exercises any of its redemption rights relating to the Series D Preferred Shares (whether the optional redemption right or the special optional redemption right), the holders of Series D Preferred Shares will not have the conversion rights described below.
     
Change of Control:
 
A “Change of Control” is when, after the original issuance of the Series D Preferred Shares, the following have occurred and are continuing:
 
 
·
the acquisition by any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, of beneficial ownership, directly or indirectly, through a purchase merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of the Issuer’s capital shares entitling that person to exercise more than 50% of the total voting power of all of the Issuer’s capital shares entitled to vote generally in the election of the Issuer’s trustees (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); and
 
 
·
following the closing of any transaction referred to in the bullet point above, neither the Issuer nor the acquiring or surviving entity has a class of common securities (or ADRs representing such securities) listed on the NYSE, the NYSE Amex or NASDAQ or listed or quoted on an exchange or quotation system that is a successor to the NYSE, the NYSE Amex or NASDAQ.
 
Conversion Rights:
 
Upon the occurrence of a Change of Control, each holder of Series D Preferred Shares will have the right (unless, prior to the Change of Control Conversion Date, the Issuer has provided or provides notice of its election to redeem the Series D Preferred Shares) to convert some or all of the Series D Preferred Shares held by such holder on the Change of Control Conversion Date into a number of shares of the Issuer’s common shares, per share of Series D Preferred Shares to be converted, equal to the lesser of:
 
 
·
the quotient obtained by dividing (i) the sum of the $25.00 liquidation preference plus the amount of any accrued and unpaid dividends to, but not including, the Change of Control Conversion Date (unless the Change of Control Conversion Date is after a record date for a Series D Preferred Shares dividend payment and prior to the corresponding Series D Preferred Shares dividend payment date, in which case no additional amount for such accrued and unpaid dividend will be included in this sum) by (ii) the Common Share Price; and
 
 
 

 
 
 
·
5.6306 (i.e., the Share Cap), subject to certain adjustments;
 
   
subject, in each case, to provisions for the receipt of alternative consideration as described in the preliminary prospectus.
 
If, prior to the Change of Control Conversion Date, the Issuer has provided or provides a redemption notice, whether pursuant to its special optional redemption right in connection with a Change of Control or its optional redemption right, holders of Series D Preferred Shares will not have any right to convert Series D Preferred Shares in connection with the Change of Control Conversion Right and any Series D Preferred Shares selected for redemption that have been tendered for conversion will be redeemed on the related date of redemption instead of converted on the Change of Control Conversion Date.
 
The “Change of Control Conversion Date” is the date the Series D Preferred Shares are to be converted, which will be a business day that is no fewer than 20 days nor more than 35 days after the date on which the Issuer provides the required notice of the occurrence of a Change of Control to the holders of Series D Preferred Shares.
 
The “Common Share Price” will be (i) if the consideration to be received in the Change of Control by the holders of the Issuer’s common shares is solely cash, the amount of cash consideration per common share of the Issuer or (ii) if the consideration to be received in the Change of Control by holders of the Issuer’s common shares is other than solely cash (x) the average of the closing sale prices per common share of the Issuer (or, if no closing sale price is reported, the average of the closing bid and ask prices or, if more than one in either case, the average of the average closing bid and the average closing ask prices) for the ten consecutive trading days immediately preceding, but not including, the effective date of the Change of Control as reported on the principal U.S. securities exchange on which the Issuer’s common shares are then traded, or (y) the average of the last quoted bid prices for the Issuer’s common shares in the over-the-counter market as reported by Pink Sheets LLC or similar organization for the ten consecutive trading days immediately preceding, but not including, the effective date of the Change of Control, if the Issuer’s common shares are not then listed for trading on a U.S. securities exchange.
 
 
 

 
 
SCHEDULE 3
 
JOINT VENTURES OF THE COMPANY
 
5400 Westheimer Holding L.P.
8%
FT-Ontario Holdings LLC
80%
WRT-1050 Corporetum Holdings LLC
60%
WRT-Marc RC Holding LLC
60%
Sealy Airpark Nashville General Partnership
50%
Sealy Newmarket General Partnership
68%
Sealy Northwest Atlanta Partners, L.P.
60%
WRT-ROIC Riverside LLC
50%
WRT-ROIC Lakeside Eagle LLC
50%
WRT-DV LLC
96.5%
Marc Michigan 30 LLC
50%
Marc Brooks Building LLC
50%
Marc River Road LLC
50%
Marc Highpoint Plaza LLC
50%
Marc 1701 E. Woodfield Road LLC
50%
Marc Salt Creek LLC
50%
900 Ridgebrook LLC
50%
Michigan-180 LLC
70%
Lex-Win Acquisition LLC
28%
Concord Debt Holdings LLC
33.3%
CDH CDO LLC
33.3%
WRT-Socal Lender LLC
98.62%
SoCal OLP Holdings LLC
57.81 1
RE CDO Management LLC
50%
HC Cypress Pointe LLC
preferred interest
Vintage Housing Holdings LLC
75%
446-High Line LLC
preferred interest
Stamford SM L.L.C.
20%
WRT-Elad One South State Lender, L.P
50%
WRT-Elad One South State Equity, L.P.
50%
 
_____________________
1 WRT-SoCal Lender LLC holds this interest.
 
 
 

 
 
Exhibit A
 
LOCK-UP LETTER AGREEMENT
 
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019

Stifel, Nicolaus & Company, Incorporated
501 North Broadway
St. Louis, Missouri  63102

Jefferies & Company, Inc.
520 Madison Avenue
New York, New York 10022

Ladies and Gentlemen:
 
The undersigned understands that you (the “ Underwriters ”) propose to enter into an Underwriting Agreement (the “ Underwriting Agreement ”) providing for the purchase by the Underwriters of 9.25% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $1.00 per share (the “ Series D Preferred Shares ”), of Winthrop Realty Trust, an unincorporated association in the form of an Ohio real estate investment trust (the “ Company ”), and that the Underwriters propose to reoffer the Series D Preferred Shares (the “ Securities ”) to the public (the “ Offering ”).
 
In consideration of the execution of the Underwriting Agreement by the Underwriters, and for other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the prior written consent of the Underwriters, the undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Preferred Shares of Beneficial Interest of the Company (“ Preferred Shares ”) (including, without limitation, Preferred Shares that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and shares of Preferred Shares that may be issued upon exercise of any options or warrants) or any equity securities similar to or ranking on par with or senior to the Preferred Shares or securities convertible into or exercisable or exchangeable for Preferred Shares or similar, parity or senior equity securities, (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of Preferred Shares or such similar, parity or senior equity securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Preferred Shares or such similar, parity or senior equity securities or other securities, in cash or otherwise,   (3) make any demand for or exercise any right or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any Preferred Shares or such similar, parity or senior equity securities or securities convertible into or exercisable or exchangeable for Preferred Shares or any other securities of the Company or (4) publicly disclose the intention to do any of the foregoing, for a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus relating to the Offering (such 60-day period, together with the possible extension noted in the next paragraph, the “ Lock-Up Period ”). 
 
 
 

 
 
Notwithstanding the foregoing:
 
(a) if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Lock-Up Letter Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Underwriters waive such extension in writing; and
 
(b) the undersigned may transfer Preferred Shares (i) as a bona fide gift or gifts, (ii) pursuant to the laws of descent and distribution, and (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned; provided that it shall be a condition to any such transfer that (i) the transferee/donee agrees to be bound by the terms of this Lock-Up Letter Agreement to the same extent as if the transferee/donee were a party hereto, (ii) no filing by any party (donor, donee, transferor or transferee) under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the Lock-Up Period,  (iii) each party (donor, donee, transferor or transferee) shall not be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make, and shall agree to not voluntarily make, any public announcement of the transfer or disposition, and (iv) the undersigned notifies the Underwriters at least two business days prior to the proposed transfer or disposition.   For purposes of this Lock-Up Letter Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.
 
In furtherance of the foregoing, the Company and its transfer agent are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Lock-Up Letter Agreement.
 
It is understood that, if the Company notifies the Underwriters that it does not intend to proceed with the Offering, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Securities, the undersigned will be released from its obligations under this Lock-Up Letter Agreement.
 
The undersigned understands that the Company and the Underwriters will proceed with the Offering in reliance on this Lock-Up Letter Agreement.
 
Whether or not the Offering actually occurs depends on a number of factors, including market conditions.  Any Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company, and the Underwriters.
 
[Signature page follows]
 
 
 

 
 
            The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will execute any additional documents necessary in connection with the enforcement hereof.  Any obligations of the undersigned shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.  The undersigned hereby acknowledges that the undersigned is executing this Lock-Up Letter Agreement on behalf of himself, his spouse and his adult children.

Very truly yours,
 
 
By: _____________________
       Name: Michael Ashner
 
Dated:  _______________
 
[Signature Page to Lock-Up Letter Agreement]
 
 
 
 

 

 
[REMAINDER OF EXHIBITS INTENTIONALLY OMITTED]
 

 
 
 
 
Winthrop Realty Trust TRADED: NYSE: FUR
7 Bulfinch Place, Suite 500
Boston, MA  02114
   
Contact at Winthrop Realty Trust
Beverly Bergman
Investor or Media Inquiries
Phone: (617) 570-4614; e-mail: bbergman@firstwinthrop.com

FOR IMMEDIATE RELEASE
March 23, 2012

WINTHROP REALTY TRUST CLOSES OFFERING OF $80.6 MILLION OF ITS 9.25% SERIES D CUMULATIVE REDEEMABLE PREFERRED SHARES

FOR IMMEDIATE RELEASE – BOSTON, March 23 -- Winthrop Realty Trust (NYSE:FUR) (“Winthrop”) today announced the closing of its previously announced underwritten public offering of 3,220,000 9.25% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest (the ‘Series D Preferred Shares”) at a price of $25.0385 per share which includes 420,000 Series D Preferred Shares issued pursuant to the exercise by the underwriters of their entire over-allotment option.  Winthrop received net proceeds from the offering, after the underwriting discounts and commissions and estimated offering expenses payable by Winthrop, of approximately $77.9 million.

Barclays Capital Inc., Stifel, Nicolaus & Company, Incorporated and Jefferies & Company, Inc. acted as joint book-running managers for the offering. Credit Suisse Securities (USA) LLC and KeyBanc Capital Markets Inc. acted as joint lead managers and JMP Securities LLC acted as a   co-manager.

This communication shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state in which the offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of that state.
__________________

Winthrop Realty Trust is a NYSE-listed real estate investment trust (REIT) headquartered in Boston, Massachusetts.  Additional information on Winthrop Realty Trust is available on its Web site at www.winthropreit.com .

“Safe Harbor” Statement under the Private Securities Litigation Reform Act of 1995.  With the exception of the historical information contained in this news release, the matters described herein contain “forward-looking” statements that involve risk and uncertainties that may individually or collectively impact the matters herein described.  These are detailed from time to time in the “Risk Factors” section of the Company’s SEC reports.  Further information relating to the Company’s financial position, results of operations, and investor information is contained in the Company’s annual and quarterly reports filed with the SEC and available for download at its website www.winthropreit.com or at the SEC website www.sec.gov .