EX-4.1





Exhibit 4.1



SECOND AMENDED AND RESTATED




ARTICLES OF INCORPORATION




OF




DEVELOPERS DIVERSIFIED REALTY CORPORATION




          The undersigned, desiring to form a corporation for profit under Sections 1701.01 to 1701.98,
inclusive, of the Ohio Revised Code, does hereby certify:




          FIRST: The name of the Corporation shall be Developers Diversified Realty Corporation.




          SECOND: The place in the State of Ohio where the principal office of the Corporation is
located is Beachwood, Cuyahoga County.




          THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be formed under Sections 1701.01 to 1701.98, inclusive of the Ohio Revised Code.




          FOURTH: The authorized number of shares of the Corporation is 311,000,000, consisting of
300,000,000 common shares, $0.10 par value per share (hereinafter called “Common Shares”), 750,000
Class A Cumulative Preferred Shares, without par value (hereinafter called “Class A Shares”),
750,000 Class B Cumulative Preferred Shares, without par value (hereinafter called “Class B
Shares”), 750,000 Class C Cumulative Preferred Shares, without par value (hereinafter called “Class
C Shares”), 750,000 Class D Cumulative Preferred Shares, without par value (hereinafter called
“Class D Shares”), 750,000 Class E Cumulative Preferred Shares, without par value (hereinafter
called “Class E Shares”), 750,000 Class F Cumulative Preferred Shares, without par value
(hereinafter called “Class F Shares”), 750,000 Class G Cumulative Preferred Shares, without par
value (hereinafter called “Class G Shares”), 750,000 Class H Cumulative Preferred Shares, without
par value (hereinafter called “Class H Shares”), 750,000 Class I Cumulative Preferred Shares,
without par value (hereinafter called “Class I Shares”), 750,000 Class J Cumulative Preferred
Shares, without par value (hereinafter called “Class J Shares”), 750,000 Class K Cumulative
Preferred Shares, without par value (hereinafter called “Class K Shares”), 750,000 Noncumulative
Preferred Shares, without par value (hereinafter called “Noncumulative Shares”), and 2,000,000
Cumulative Voting Preferred Shares, without par value (hereinafter called “Voting Preferred
Shares”). The Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class
F Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and Voting
Preferred Shares are sometimes collectively referred to herein as the “Cumulative Shares.”




 









 








DIVISION A




     I. The Class A Cumulative Preferred Shares. The Class A Shares shall have the following
express terms:




     Section 1. Series. The Class A Shares may be issued from time to time in one or more
series. All Class A Shares shall be of equal rank and shall be identical, except in respect
of the matters that may be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Class A Shares shall rank on
a parity with the Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares and shall be identical to all Class B Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares and Noncumulative Shares except (1) in respect of the matters
that may be fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on the Cumulative Shares shall be
cumulative as set forth herein. Subject to the provisions of Sections 2 through 5, both
inclusive, and Item XIII of this Division, which provisions shall apply to all Class A
Shares, the Board of Directors hereby is authorized to cause such shares to be issued in one
or more series and, with respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in clause (b) of this Section), the
following:




     (a) The designation of the series, which may be by distinguishing number,
letter or title;




     (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);




     (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




     (d) The date or dates from which dividends shall accrue and be cumulative and
the dates on which and the period or periods for which dividends, if declared,
shall be payable, including the means by which such dates and periods may be
established;




     (e) The redemption rights and price or prices, if any, for shares of the
series;




     (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;



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     (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;




     (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and




     (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item I) on the issuance of shares of the same series or of any other class or
series.



          The Board of Directors is authorized to adopt from time to time amendments to the Amended and
Restated Articles of Incorporation, as amended, fixing, with respect to each such series, the
matters described in clauses (a) through (i), inclusive, of this Section and is authorized to take
such actions with respect thereto as may be required by law in order to effect such amendments.




          Section 2. Dividends.





     (a) The holders of Class A Shares of each series, in preference to the holders
of Common Shares and of any other class of shares ranking junior to the Class A
Shares, shall be entitled to receive out of any funds legally available therefor,
and when and as declared by the Board of Directors, dividends in cash at the rate
or rates for such series fixed in accordance with the provisions of Section 1 above
and no more, payable on the dates fixed for such series. Such dividends shall
accrue and be cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class A Shares for any
dividend period unless at the same time (i) a like proportionate dividend for the
dividend periods terminating on the same or any earlier date, ratably in proportion
to the respective annual dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Class A Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date (but, with
respect to Noncumulative Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend rates fixed therefor,
shall have been paid upon or declared or set apart for all Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares, Class H
Shares, Class I Shares, Class J Shares, Class K Shares and Noncumulative Shares
then issued and outstanding and entitled to receive such dividends.




     (b) So long as any Class A Shares shall be outstanding no dividend, except a
dividend payable in Common Shares or other shares ranking junior to the Class A
Shares, shall be paid or declared or any distribution be made, except



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as aforesaid, in respect of the Common Shares or any other shares ranking
junior to the Class A Shares, nor shall any Common Shares or any other shares
ranking junior to the Class A Shares be purchased, retired or otherwise acquired by
the Corporation, except out of the proceeds of the sale of Common Shares or other shares of the Corporation ranking junior to the Class A Shares received by the
Corporation subsequent to the date of first issuance of Class A Shares of any
series, unless:




          (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;




          (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment therefor
set apart; and




          (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund provided for shares of such series in accordance with the provisions of Section 1 of this Item I.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption retirement or other acquisition
of, Common Shares or any other shares ranking on a parity with or junior to the
Class A Shares shall be inapplicable to (i) any payments in lieu of issuance of
fractional shares thereof, whether upon any merger, conversion, stock dividend or
otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its rights pursuant to
Item XIV(d) of this Division A, Section 4(d) of Division B or any similar Section
hereafter contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock hereafter
created or authorized.




     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Class A Shares shall
be the amount that the total dividends paid or made available to the holders of the
Class A Shares for the year bears to the Total Dividends.



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          Section 3. Redemption.





     (a) Subject to the express terms of each series, the Corporation:




          (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Class A Shares at the time outstanding at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item I; and




          (2) Shall, from time to time, make such redemptions of each series of Class A
Shares as may be required to fulfill the requirements of any sinking fund provided
for shares of such series at the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this Item I; and shall in each case
pay all accrued and unpaid dividends to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid, to
the holders of record of the Class A Shares to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days nor
more than 60 days prior to the date fixed for such redemption, or such other time
prior thereto as the Board of Directors shall fix for any series pursuant to
Section 1 of this Item I prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may deposit the
aggregate redemption price of Class A Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any bank or trust company
in Cleveland, Ohio, or New York, New York, having capital and surplus of not less
than $100,000,000 named in such notice and direct that there be paid to the
respective holders of the Class A Shares so to be redeemed amounts equal to the
redemption price of the Class A Shares so to be redeemed, together with such
accrued and unpaid dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of such notice in the mail
and the making of such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such shares; and from and
after the time such notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or claim against the
Corporation with respect to such shares, except only the right to receive such
money from such bank or trust company without interest or to exercise before the
redemption date any unexpired privileges of conversion. In the event less than all
of the outstanding Class A Shares are to be redeemed, the Corporation shall select
by lot the shares so to be redeemed in such manner as shall be prescribed by the
Board of Directors.




          (2) If the holders of Class A Shares which have been called for redemption
shall not within six years after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such



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bank or trust company and the Corporation shall be relieved of all
responsibility in respect thereof and to such holders.




     (c) Any Class A Shares which are (1) redeemed by the Corporation pursuant to
the provisions of this Section, (2) purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series, (3) converted in
accordance with the express terms thereof, or (4) otherwise acquired by the
Corporation shall resume the status of authorized but unissued Class A Shares
without serial designation.




     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated Articles
of Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not purchase or redeem
(for sinking fund purposes or otherwise) less than all of the Class A Shares then
outstanding except in accordance with a stock purchase offer made to all holders of
record of Class A Shares, unless all dividends on all Class A Shares then
outstanding for all previous and current dividend periods shall have been declared
and paid or funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.



          Section 4. Liquidation.





     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of Class A
Shares of any series shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or distributed
among the holders of the Common Shares or any other shares ranking junior to the
Class A Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item I, plus an amount equal to all dividends
accrued and unpaid thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of the Corporation. In
the event the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all outstanding
Cumulative Shares and Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.




          (2) After payment to the holders of Class A Shares of the full preferential
amounts as aforesaid, the holders of Class A Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.




     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other Corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be



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deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.



          Section 5. Voting.





     (a) The holders of Class A Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Class A Shares at the time outstanding,
whether or not earned or declared, for a number of dividend payment periods,
whether consecutive or not, which in the aggregate contain at least 540 days, all
holders of such Class A Shares, voting separately as a class, together with all
Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the Board of Directors of
the Corporation; provided, however, that the holders of such Class A Shares shall
not exercise such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not less than
50% of such Class A Shares are present in person or by proxy; and provided further
that the special class voting rights provided for in this paragraph when the same
shall have become vested shall remain so vested until all accrued and unpaid
dividends on such Class A Shares then outstanding shall have been paid or declared
and a sum sufficient for the payment thereof set aside for payment, whereupon the
holders of such Class A Shares shall be divested of their special class voting
rights in respect of subsequent elections of directors, subject to the revesting of
such special class voting rights in the event above specified in this paragraph.




          (2) In the event of default entitling holders of Class A Shares to elect two
directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Class A Shares upon which such default in
the payment of dividends exists and notice thereof shall be given in the same manner
as that required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual meeting
of shareholders shall be called to be held within 90 days after the date of receipt
of the foregoing written request from the holders of Class A Shares. At any meeting
at which such holders of Class A Shares shall be entitled to elect directors,
holders of 50% of such Class A Shares, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders of a majority of such shares so present at any such meeting at which there shall be such a quorum shall be
sufficient to elect the members of the Board of Directors which such holders of
Class A Shares are entitled to elect as herein provided.



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Notwithstanding any provision of these Amended and Restated Articles of
Incorporation, as amended, or the Code of Regulations of the Corporation or any
action taken by the holders of any class of shares fixing the number of directors of
the Corporation, the two directors who may be elected by such holders of Class A
Shares pursuant to this Subsection shall serve in addition to any other directors
then in office or proposed to be elected otherwise than pursuant to this Subsection.
Nothing in this Subsection shall prevent any change otherwise permitted in the
total number of or classifications of directors of the Corporation or require the
resignation of any director elected otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other directors of the Corporation, the
two directors elected by such holders of Class A Shares shall be elected annually
for terms expiring at the next succeeding annual meeting of shareholders.




          (3) Upon any divesting of the special class voting rights of the holders of the
Class A Shares in respect of elections of directors as provided in this Subsection,
the terms of office of all directors then in office elected by such holders shall
terminate immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by such holders voting as a
class may elect a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred.




     (c) If at any time when the holders of Class A Shares are entitled to elect
directors pursuant to the foregoing provisions of this Section the holders of any
Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares or
Noncumulative Shares are entitled to elect directors pursuant hereto by reason of
any default in the payment of dividends thereon, then the voting rights of the
Cumulative Shares and Noncumulative Shares then entitled to vote shall be combined
(with each class of shares having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such case, the holders of
Class A Shares and of all such other shares then entitled so to vote, voting as a
class, shall elect such directors. If the holders of any such other shares have
elected such directors prior to the happening of the default or event permitting
the holders of Class A Shares to elect directors, or prior to a written request for
the holding of a special meeting being received by the Secretary of the Corporation
as required above, then a new election shall be held with all such other shares and
the Class A Shares voting together as a single class for such directors, resulting
in the termination of the term of such previously elected directors upon the
election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the Class A
Shares at the time outstanding, voting separately as a class, given in person or by
proxy either in writing or at a meeting called for the purpose, shall be necessary
to effect either of the following:



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          (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of Class A Shares which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class A Shares or of any shares ranking on a parity with or junior to the Class A Shares nor the amendment of
the provisions of the Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed to affect adversely
and materially preferences or voting or other rights of the holders of Class A
Shares; or




          (2) The authorization, creation or increase in the authorized number of any shares, or any security convertible into shares, in either case ranking prior to
such series of Class A Shares.




     (e) In the event, and only to the extent, that (1) Class A Shares are issued
in more than one series and (2) Ohio law permits the holders of a series of a class
of capital stock to vote separately as a class, the affirmative vote of the holders
of at least two-thirds of each series of Class A Shares at the time outstanding,
voting separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects adversely
and materially the preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated Articles of Incorporation,
as amended; provided, however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Class A Shares or of any shares ranking on a
parity with or junior to the Class A Shares nor the Amendment of the provisions of
the Code of Regulations so as to change the number or classification of directors
of the Corporation shall be deemed to affect adversely and materially the
preferences or voting or other rights of the holders of such series.




     Section 6. 91/2% Class A Cumulative Redeemable Preferred Shares. Of the 750,000
authorized Class A Shares, 460,000 shares are designated as a series entitled “91/2% Class A
Cumulative Redeemable Preferred Shares” (hereinafter called “91/2% Class A Preferred Shares”).
The 91/2% Class A Preferred Shares shall have the express terms set forth in this Item I as
being applicable to all Class A Shares as a class and, in addition, the following express
terms applicable to all 91/2% Class A Preferred Shares as a series of Class A Shares:



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     (a) The annual dividend rate of the 91/2% Class A Preferred Shares shall be 91/2%
of the liquidation preference of $250.00 per share.




     (b) Dividends on the 91/2% Class A Preferred Shares shall be payable, if
declared, quarterly on or about the 15th day of March, June, September, and
December each year, the first quarterly dividend being payable, if declared, on
December 15, 1995. The dividends payable for each full quarterly dividend period
on each 91/2% Class A Preferred Share shall be $5.94.




     Dividends for the initial dividend period on the 91/2% Class A Preferred Shares,
or for any period shorter or longer than a full dividend period on the 91/2% Class A
Preferred Shares, shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. The aggregate dividend payable quarterly to each holder of
91/2% Class A Preferred Shares shall be rounded to the nearest one-hundredth of one
cent with $.00005 being rounded upward. Each dividend shall be payable to the
holders of record on such record date, no less than 10 nor more than 30 days
preceding the payment date thereof, as shall be fixed from time to time by the
Corporation’s Board of Directors.




     (c) Dividends on 91/2% Class A Preferred Shares shall be cumulative as follows:




          (1) With respect to shares included in the initial issue of 91/2% Class A
Preferred Shares and shares issued any time thereafter up to and including the
record date for the payment of the first dividend on the initial issue of 91/2% Class
A Preferred Shares, dividends shall be cumulative from the date of the initial issue
of 91/2% Class A Preferred Shares; and




          (2) With respect to shares issued any time after the aforesaid record date,
dividends shall be cumulative from the dividend payment date next preceding the date
of issue of such shares, except that if such shares are issued during the period
commencing the day after the record date for the payment of a dividend on 91/2% Class
A Preferred Shares and ending on the payment date of that dividend, dividends with
respect to such shares shall be cumulative from that dividend payment date.




     (d) Except as required to preserve the Corporation’s status as a real estate
investment trust under the Internal Revenue Code of 1986, as amended, the 91/2% Class
A Preferred Shares may not be redeemed prior to November 15, 2000. At any time or
from time to time on and after November 15, 2000 the Corporation, at its option
upon not less than thirty (30) nor more than sixty (60) days’ written notice, may
redeem all or any part of the 91/2% Class A Preferred Shares at a redemption price of
$250.00 per share plus, in each case, an amount equal to all dividends accrued and
unpaid thereon to the redemption date, without interest. The redemption price
(other than the portion thereof consisting of accrued and unpaid dividends) is
payable solely out of the sale proceeds of other capital shares of the Corporation,
which may include any equity securities (including



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common shares and preferred shares), shares, interests, participation or other
ownership interests (however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities), or options to purchase any
of the foregoing.




     (e) The amount payable per 91/2% Class A Preferred Share in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs of
the Corporation shall be $250.00, plus an amount equal to all dividends accrued and
unpaid thereon to the date of payment.




     (f) All dividend payments made on the 91/2% Class A Preferred Shares, at any
time during which the Corporation is in default in the payment of dividends on such
91/2% Class A Preferred Shares for any dividend period, shall, for the purposes of
Section 5(b)(1) of this Item I, be deemed to be made in respect of the earliest
dividend period with respect to which the Corporation is in default.



     II. The Class B Cumulative Preferred Shares. The Class B Cumulative Preferred Shares shall
have the following express terms:




     Section 1. Series. The Class B Shares may be issued from time to time in one or more
series. All Class B Shares shall be of equal rank and shall be identical, except in respect
of the matters that may be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Class B Shares shall rank on
a parity with the Class A Shares, Class C Shares, Class D Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares and shall be identical to all Class A Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares and Noncumulative Shares except (1) in respect of the matters
that may be fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on the Cumulative Shares are cumulative
as set forth herein. Subject to the provisions of Sections 2 through 5, both inclusive, and
Item XIII of this Division, which provisions shall apply to all Class B Shares, the Board of
Directors hereby is authorized to cause such shares to be issued in one or more series and
with respect to each such series to determine and fix prior to the issuance thereof (and
thereafter, to the extent provided in clause (b) of this Section), the following:




     (a) The designation of the series, which may be by distinguishing number,
letter or title;




     (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);



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     (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




     (d) The date or dates from which dividends shall accrue and be cumulative and
the dates on which and the period or periods for which dividends, if declared,
shall be payable, including the means by which such dates and periods may be
established;




     (e) The redemption rights and price or prices, if any, for shares of the
series;




     (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;




     (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;




     (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and




     (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item II) on the issuance of shares of the same series or of any other class or
series.



          The Board of Directors is authorized to adopt from time to time amendments to the Amended and
Restated Articles of Incorporation, as amended, fixing, with respect to each such series, the
matters described in clauses (a) through (i), both inclusive, of this Section and is authorized to
take such actions with respect thereto as may be required by law in order to effect such
amendments.




          Section 2. Dividends.





     (a) The holders of Class B Shares of each series, in preference to the holders
of Common Shares and of any other class of shares ranking junior to the Class B
Shares, shall be entitled to receive out of any funds legally available therefor,
and when and as declared by the Board of Directors, dividends in cash at the rate
or rates for such series fixed in accordance with the provisions of Section 1 above
and no more, payable on the dates fixed for such series. Such dividends shall
accrue and be cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class B Shares for any
dividend period unless at the same time (i) a like proportionate dividend for the
dividend periods terminating on the same or any earlier date, ratably in proportion
to the respective annual dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Class B Shares of all series



12









 







then issued and outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the same or any earlier
date (but, with respect to the Noncumulative Shares, only with respect to the then
current dividend period), ratably in proportion to the respective dividend rates
fixed therefor, shall have been paid upon or declared or set apart for all Class A
Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares then issued and outstanding and entitled to receive such
dividends.




     (b) So long as any Class B Shares shall be outstanding no dividend, except a
dividend payable in Common Shares or other shares ranking junior to the Class B
Shares, shall be paid or declared or any distribution be made, except as aforesaid,
in respect of the Common Shares or any other shares ranking junior to the Class B
Shares, nor shall any Common Shares or any other shares ranking junior to the Class
B Shares be purchased, retired or otherwise acquired by the Corporation, except out
of the proceeds of the sale of Common Shares or other shares of the Corporation
ranking junior to the Class B Shares received by the Corporation subsequent to the
date of first issuance of Class B Shares of any series, unless:




          (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;




          (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment thereof set
apart; and




          (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund provided for shares of such series in accordance with the provisions of Section 1 of this Item
II.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption, retirement or other acquisition
of, Common Shares or any other shares ranking on a parity with or junior to the
Class B Shares shall be inapplicable to (i) any payments in lieu of issuance of
fractional shares thereof, whether upon any merger, conversion, stock dividend or
otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares into
Common Shares or (iii) the exercise by the Corporation of its rights pursuant to
Item XIV(d) of this Division A, Section 4(d) of Division B or any similar Section
hereafter contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock hereafter
created or authorized.



13









 






     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent that it does not cause any dividends to fail to qualify
for the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Class B Shares shall
be the amount that the total dividends paid or made available to the holders of the
Class B Shares for the year bears to the Total Dividends.



          Section 3. Redemption.





     (a) Subject to the express terms of each series, the Corporation:




          (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Class B Shares at the time outstanding at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item II; and




          (2) Shall, from time to time, make such redemptions of each series of Class B
Shares as may be required to fulfill the requirements of any sinking fund provided
for shares of such series at the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this Item II; and shall in each case
pay all accrued and unpaid dividends to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Class B Shares to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days nor
more than 60 days prior to the date fixed for such redemption, or such other time
prior thereto as the Board of Directors shall fix for any series pursuant to
Section 1 of this Item II prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may deposit the
aggregate redemption price of Class B Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any bank or trust company
in Cleveland, Ohio, or New York, New York, having capital and surplus of not less
than $100,000,000 named in such notice and direct that there be paid to the
respective holders of the Class B Shares so to be redeemed amounts equal to the
redemption price of the Class B Shares so to be redeemed, together with such
accrued and unpaid dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of such notice in the mail
and the making of such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such shares; and from and
after the time such notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or claim against the
Corporation with respect to such shares, except only the right to receive such
money from such bank or trust



14









 







company without interest or to exercise before the redemption date any
unexpired privileges of conversion. In the event less than all of the outstanding
Class B Shares are to be redeemed, the Corporation shall select by lot the shares
so to be redeemed in such manner as shall be prescribed by the Board of Directors.




          (2) If the holders of Class B Shares which have been called for redemption
shall not within six years after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and to
such holders.




     (c) Any Class B Shares which are (1) redeemed by the Corporation pursuant to
the provisions of this Section, (2) purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series, (3) converted in
accordance with the express terms thereof, or (4) otherwise acquired by the
Corporation shall resume the status of authorized but unissued Class B Shares
without serial designation.




     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated Articles
of Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not purchase or redeem
(for sinking fund purposes or otherwise) less than all of the Class B Shares then
outstanding except in accordance with a stock purchase offer made to all holders of
record of Class B Shares, unless all dividends on all Class B Shares then
outstanding for all previous and current dividend periods shall have been declared
and paid or funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.



          Section 4. Liquidation.





     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of Class B
Shares of any series shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or distributed
among the holders of the Common Shares or any other shares ranking junior to the
Class B Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item II, plus an amount equal to all dividends
accrued and unpaid thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of the Corporation. In
the event the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all



15









 







outstanding Cumulative Shares and Noncumulative Shares in proportion to the
full preferential amount to which each such share is entitled.




          (2) After payment to the holders of Class B Shares of the full preferential
amounts as aforesaid, the holders of Class B Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.



     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be
deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.



          Section 5. Voting.





     (a) The holders of Class B Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Class B Shares at the time outstanding,
whether or not earned or declared, for a number of dividend payment periods,
whether consecutive or not, which in the aggregate contain at least 540 days, all
holders of Class B Shares, voting separately as a class, together with all Class A
Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the Board of Directors of
the Corporation; provided, however, that the holders of such Class B Shares shall
not exercise such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not less than
50% of such Class B Shares are present in person or by proxy; and provided further
that the special class voting rights provided for in this paragraph when the same
shall have become vested shall remain so vested until all accrued and unpaid
dividends on such Class B Shares then outstanding shall have been paid or declared
and a sum sufficient therefor set aside for payment, whereupon the holders of such
Class B Shares shall be divested of their special class voting rights in respect of
subsequent elections of directors, subject to the revesting of such special class
voting rights in the event above specified in this paragraph.




     (2) In the event of default entitling holders of Class B Shares to elect two
directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Class B Shares upon which such default in
the payment of dividends exists and notice thereof shall be given in the same manner
as that required for the annual meeting of shareholders; provided,



16









 







however, that the Corporation shall not be required to call such special
meeting if the annual meeting of shareholders shall be called to be held within 90
days after the date of receipt of the foregoing written request from the holders of
Class B Shares. At any meeting at which such holders of Class B Shares shall be
entitled to elect directors, holders of 50% of such Class B Shares, present in
person or by proxy, shall be sufficient to constitute a quorum, and the vote of the
holders of a majority of such shares so present at any such meeting at which there
shall be such a quorum shall be sufficient to elect the members of the Board of
Directors which such holders of Class B Shares are entitled to elect as herein
provided. Notwithstanding any provision of these Amended and Restated Articles of
Incorporation, as amended, or the Code of Regulations of the Corporation or any
action taken by the holders of any class of shares fixing the number of directors of
the Corporation, the two directors who may be elected by such holders of Class B
Shares pursuant to this Subsection shall serve in addition to any other directors
then in office or proposed to be elected otherwise than pursuant to this Subsection.
Nothing in this Subsection shall prevent any change otherwise permitted in the
total number of or classifications of directors of the Corporation nor require the
resignation of any director elected otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other directors of the Corporation, the
two directors elected by such holders of Class B Shares shall be elected annually
for terms expiring at the next succeeding annual meeting of shareholders.




          (3) Upon any divesting of the special class voting rights of the holders of the
Class B Shares in respect of elections of directors as provided in this Subsection,
the terms of office of all directors then in office elected by such holders shall
terminate immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by such holders voting as a
class may elect a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred.




     (c) If at any time when the holders of Class B Shares are entitled to elect
directors pursuant to the foregoing provisions of this Section the holders of any
Class A Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares or
Noncumulative Shares are entitled to elect directors pursuant hereto by reason of
any default in the payment of dividends thereon, then the voting rights of the
Cumulative Shares and the Noncumulative Shares then entitled to vote shall be
combined (with class of shares having a number of votes proportional to the
aggregate liquidation preference of its outstanding shares). In such case, the
holders of Class B Shares and of all such other shares then entitled so to vote,
voting as a class, shall elect such directors. If the holders of any such other shares have elected such directors prior to the happening of the default or event
permitting the holders of Class B Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be held with all such



17









 







other shares and the Class B Shares voting together as a single class for such
directors, resulting in the termination of the term of such previously elected
directors upon the election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the Class B
Shares at the time outstanding, voting separately as a class, given in person or by
proxy either in writing or at a meeting called for the purpose, shall be necessary
to effect either of the following:




          (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of Class B Shares which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class B Shares or of any shares ranking on a parity with or junior to the Class B Shares nor the amendment of
the provisions of the Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed to affect adversely
and materially preferences or voting or other rights of the holders of Class B
Shares; or




          (2) The authorization, creation or increase in the authorized number of any shares, or any security convertible into shares, in either case ranking prior to
such Class B Shares.




     (e) In the event, and only to the extent, that (1) Class B Shares are issued
in more than one series and (2) Ohio law permits the holders of a series of a class
of capital stock to vote separately as a class, the affirmative vote of the holders
of at least two-thirds of each series of Class B Shares at the time outstanding,
voting separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects adversely
and materially the preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated Articles of Incorporation,
as amended; provided, however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Class B Shares or of any shares remaining on a
parity with or junior to the Class B Shares nor the amendment of the provisions of
the Code of Regulations so as to change the number or classification of directors
of the Corporation shall be deemed to affect adversely and materially preferences
or voting or other rights of the holders of such series.



18









 






     Section 6. 9.44% Class B Cumulative Redeemable Preferred Shares. Of the 750,000
authorized Class B Shares, 177,500 shares are designated as a series entitled “9.44% Class B
Cumulative Redeemable Preferred Shares” (hereinafter called “9.44% Class B Preferred
Shares”). The 9.44% Class B Preferred Shares shall have the express terms set forth in this
Item II as being applicable to all Class B Shares as a class and, in addition, the following
express terms applicable to all 9.44% Class B Preferred Shares as a series of Class B
Shares:




     (a) The annual dividend rate of the 9.44% Class B Preferred Shares shall be
9.44% of the liquidation preference of $250.00 per share.




     (b) Dividends on the 9.44% Class B Preferred Shares shall be payable, if
declared, quarterly on or about the 15th day of March, June, September, and
December each year, the first quarterly dividend being payable, if declared, on
March 15, 1996. The dividends payable for each full quarterly dividend period on
each 9.44% Class B Preferred Share shall be $5.90.




     Dividends for the initial dividend period on the 9.44% Class B Preferred
Shares, or for any period shorter or longer than a full dividend period on the 9.44%
Class B Preferred Shares, shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. The aggregate dividend payable quarterly to
each holder of 9.44% Class B Preferred Shares shall be rounded to the nearest
one-hundredth of one cent with $.00005 being rounded upward. Each dividend shall be
payable to the holders of record on such record date, no less than 10 nor more than
30 days preceding the payment date thereof, as shall be fixed from time to time by
the Corporation’s Board of Directors.




     (c) Dividends on 9.44% Class B Preferred Shares shall be cumulative as
follows:




          (1) With respect to shares included in the initial issue of 9.44% Class B
Preferred Shares and shares issued any time thereafter up to and including the
record date for the payment of the first dividend on the initial issue of 9.44%
Class B Preferred Shares, dividends shall be cumulative from the date of the initial
issue of 9.44% Class B Preferred Shares; and




          (2) With respect to shares issued any time after the aforesaid record date,
dividends shall be cumulative from the dividend payment date next preceding the date
of issue of such shares, except that if such shares are issued during the period
commencing the day after the record date for the payment of a dividend on 9.44%
Class B Preferred Shares and ending on the payment date of that dividend, dividends
with respect to such shares shall be cumulative from that dividend payment date.




     (d) Except as required to preserve the Corporation’s status as a real estate
investment trust under the Internal Revenue Code of 1986, as amended, the 9.44%
Class B Preferred Shares may not be redeemed prior to December 26,



19









 






2000. At any time or from time to time on and after December 26, 2000 the
Corporation, at its option upon not less than thirty (30) nor more than sixty (60)
days’ written notice, may redeem all or any part of the 9.44% Class B Preferred
Shares at a redemption price of $250.00 per share plus, in each case, an amount
equal to all dividends accrued and unpaid thereon to the redemption date, without
interest. The redemption price (other than the portion thereof consisting of
accrued and unpaid dividends) is payable solely out of the sale proceeds of other
capital shares of the Corporation, which may include any equity securities
(including common shares and preferred shares), shares, interests, participation or
other ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities), or options to
purchase any of the foregoing.




     (e) The amount payable per 9.44% Class B Preferred Share in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs of
the Corporation shall be $250.00, plus an amount equal to all dividends accrued and
unpaid thereon to the date of payment.




     (f) All dividend payments made on the 9.44% Class B Preferred Shares, at any
time during which the Corporation is in default in the payment of dividends on such
9.44% Class B Preferred Shares for any dividend period, shall, for the purposes of
Section 5(b)(1) of this Item II, be deemed to be made in respect of the earliest
dividend period with respect to which the Corporation is in default.



     III. The Class C Cumulative Preferred Shares. The Class C Shares shall have the following
express terms:




     Section 1. Series. The Class C Shares may be issued from time to time in one or more
series. All Class C Shares shall be of equal rank and shall be identical, except in respect
of the matters that may be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Class C Shares shall rank on
a parity with the Class A Shares, Class B Shares, Class D Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares and shall be identical to all Class A Shares, Class B Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares and Noncumulative Shares except (1) in respect of the matters
that may be fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on Cumulative Shares shall be cumulative
as set forth herein. Subject to the provisions of Sections 2 through 5, both inclusive, and
Item XIII of this Division, which provisions shall apply to all Class C Shares, the Board of
Directors hereby is authorized to cause such shares to be issued in one or more series and,
with respect to each such series to determine and fix prior to the issuance thereof (and
thereafter, to the extent provided in clause (b) of this Section), the following:




20











 






     (a) The designation of the series, which may be by distinguishing number,
letter or title;




     (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);




     (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




     (d) The date or dates from which dividends shall accrue and be cumulative and
the dates on which and the period or periods for which dividends, if declared,
shall be payable, including the means by which such dates and periods may be
established;




     (e) The redemption rights and price or prices, if any, for shares of the
series;




     (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;




     (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;




     (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and




     (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item III) on the issuance of shares of the same series or of any other class
or series.



          The Board of Directors is authorized to adopt from time to time amendments to the Amended and
Restated Articles of Incorporation, as amended, fixing, with respect to each such series, the
matters described in clauses (a) through (i), inclusive, of this Section and is authorized to take
such actions with respect thereto as may be required by law in order to effect such amendments.




          Section 2. Dividends.





     (a) The holders of Class C Shares of each series, in preference to the holders
of Common Shares and of any other class of shares ranking junior to the Class C
Shares, shall be entitled to receive out of any funds legally available therefor,
and when and as declared by the Board of Directors, dividends in cash at the rate
or rates for such series fixed in accordance with the provisions of



21









 







Section 1 above and no more, payable on the dates fixed for such series. Such
dividends shall accrue and be cumulative, in the case of shares of each particular
series, from and after the date or dates fixed with respect to such series. No
dividends shall be paid upon or declared or set apart for any series of the Class C
Shares for any dividend period unless at the same time (i) a like proportionate
dividend for the dividend periods terminating on the same or any earlier date,
ratably in proportion to the respective annual dividend rates fixed therefor, shall
have been paid upon or declared or set apart for all Class C Shares of all series
then issued and outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the same or any earlier
date (but, with respect to Noncumulative Shares, only with respect to the then
current dividend period), ratably in proportion to the respective dividend rates
fixed therefor, shall have been paid upon or declared or set apart for all Class A
Shares, Class B Shares, Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares then issued and outstanding and entitled to receive such
dividends.




     (b) So long as any Class C Shares shall be outstanding no dividend, except a
dividend payable in Common Shares or other shares ranking junior to the Class C
Shares, shall be paid or declared or any distribution be made, except as aforesaid,
in respect of the Common Shares or any other shares ranking junior to the Class C
Shares, nor shall any Common Shares or any other shares ranking junior to the Class
C Shares be purchased, retired or otherwise acquired by the Corporation, except out
of the proceeds of the sale of Common Shares or other shares of the Corporation
ranking junior to the Class C Shares received by the Corporation subsequent to the
date of first issuance of Class C Shares of any series, unless:




          (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;




          (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment therefor
set apart; and




          (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund provided for
shares of such series in accordance with the provisions of Section 1 of this Item
III.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption retirement or other acquisition
of, Common Shares or any other shares ranking on a parity with or junior to the
Class C Shares shall be inapplicable to (i) any payments in lieu of issuance of
fractional shares thereof, whether upon any merger, conversion, stock dividend



22









 







or otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares
into Common Shares, or (iii) the exercise by the Corporation of its rights pursuant
to Item XIV(d) of this Division A, Section 4(d) of Division B or any similar
Section hereafter contained in these Amended and Restated Articles of
Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized.




     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Class C Shares shall
be the amount that the total dividends paid or made available to the holders of the
Class C Shares for the year bears to the Total Dividends.



          Section 3. Redemption.





     (a) Subject to the express terms of each series, the Corporation:




          (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Class C Shares at the time outstanding at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item III; and




          (2) Shall, from time to time, make such redemptions of each series of Class C
Shares as may be required to fulfill the requirements of any sinking fund provided
for shares of such series at the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this Item III; and shall in each case
pay all accrued and unpaid dividends to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Class C Shares to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days nor
more than 60 days prior to the date fixed for such redemption, or such other time
prior thereto as the Board of Directors shall fix for any series pursuant to
Section 1 of this Item III prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may deposit the
aggregate redemption price of Class C Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any bank or trust company
in Cleveland, Ohio, or New York, New York, having capital and surplus of not less
than $100,000,000 named in such notice and direct that there be paid to the
respective holders of the Class C Shares so to be redeemed amounts equal to the
redemption price of the Class C Shares so to be redeemed, together with such
accrued and unpaid dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon



23









 







the deposit of such notice in the mail and the making of such deposit of money
with such bank or trust company, such holders shall cease to be shareholders with
respect to such shares; and from and after the time such notice shall have been so
deposited and such deposit of money shall have been so made, such holders shall
have no rights or claim against the Corporation with respect to such shares, except
only the right to receive such money from such bank or trust company without
interest or to exercise before the redemption date any unexpired privileges of
conversion. In the event less than all of the outstanding Class C Shares are to be
redeemed, the Corporation shall select by lot the shares so to be redeemed in such
manner as shall be prescribed by the Board of Directors.




          (2) If the holders of Class C Shares which have been called for redemption
shall not within six years after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and to
such holders.




     (c) Any Class C Shares which are (1) redeemed by the Corporation pursuant to
the provisions of this Section, (2) purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series, (3) converted in
accordance with the express terms thereof, or (4) otherwise acquired by the
Corporation shall resume the status of authorized but unissued Class C Shares
without serial designation.




     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated Articles
of Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not purchase or redeem
(for sinking fund purposes or otherwise) less than all of the Class C Shares then
outstanding except in accordance with a stock purchase offer made to all holders of
record of Class C Shares, unless all dividends on all Class C Shares then
outstanding for all previous and current dividend periods shall have been declared
and paid or funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.



          Section 4. Liquidation.





     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of Class C
Shares of any series shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or distributed
among the holders of the Common Shares or any other shares ranking junior to the
Class C Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item III, plus an amount equal to all dividends



24









 







accrued and unpaid thereon to the date of payment of the amount due pursuant
to such liquidation, dissolution or winding up of the affairs of the Corporation.
In the event the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all outstanding
Cumulative Shares and Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.




          (2) After payment to the holders of Class C Shares of the full preferential
amounts as aforesaid, the holders of Class C Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.




     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other Corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be
deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.



          Section 5. Voting.





     (a) The holders of Class C Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Class C Shares at the time outstanding,
whether or not earned or declared, for a number of dividend payment periods,
whether consecutive or not, which in the aggregate contain at least 540 days, all
holders of such Class C Shares, voting separately as a class, together with all
Class A Shares, Class B Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the Board of Directors of
the Corporation; provided, however, that the holders of such Class C Shares shall
not exercise such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not less than
50% of such Class C Shares are present in person or by proxy; and provided further
that the special class voting rights provided for in this paragraph when the same
shall have become vested shall remain so vested until all accrued and unpaid
dividends on such Class C Shares then outstanding shall have been paid or declared
and a sum sufficient for the payment thereof set aside for payment, whereupon the
holders of such Class C Shares shall be divested of their special class voting
rights in respect of subsequent elections of directors, subject to the revesting of
such special class voting rights in the event above specified in this paragraph.
All dividend payments made on the Class C Shares, at any time during which the
Corporation is in default in the payment of dividends on such



25









 







Class C Shares for any dividend period, shall be deemed to be made in respect
of the earliest dividend period with respect to which the Corporation is in
default.




          (2) In the event of default entitling holders of Class C Shares to elect two
directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Class C Shares upon which such default in
the payment of dividends exists and notice thereof shall be given in the same manner
as that required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual meeting
of shareholders shall be called to be held within 90 days after the date of receipt
of the foregoing written request from the holders of Class C Shares. At any meeting
at which such holders of Class C Shares shall be entitled to elect directors,
holders of 50% of such Class C Shares, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders of a majority of such
shares so present at any such meeting at which there shall be such a quorum shall be
sufficient to elect the members of the Board of Directors which such holders of
Class C Shares are entitled to elect as herein provided. Notwithstanding any
provision of these Amended and Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the Corporation, the two directors
who may be elected by such holders of Class C Shares pursuant to this Subsection
shall serve in addition to any other directors then in office or proposed to be
elected otherwise than pursuant to this Subsection. Nothing in this Subsection
shall prevent any change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the resignation of any
director elected otherwise than pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the two directors elected
by such holders of Class C Shares shall be elected annually for terms expiring at
the next succeeding annual meeting of shareholders.




          (3) Upon any divesting of the special class voting rights of the holders of the
Class C Shares in respect of elections of directors as provided in this Subsection,
the terms of office of all directors then in office elected by such holders shall
terminate immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by such holders voting as a
class may elect a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred.




     (c) If at any time when the holders of Class C Shares are entitled to elect
directors pursuant to the foregoing provisions of this Section the holders of any
Class A Shares, Class B Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares or
Noncumulative Shares are entitled to elect directors pursuant hereto by reason



26









 







of any default in the payment of dividends thereon, then the voting rights of
the Cumulative Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes proportional to the
aggregate liquidation preference of its outstanding shares). In such case, the
holders of Class C Shares and of all such other shares then entitled so to vote,
voting as a class, shall elect such directors. If the holders of any such other
shares have elected such directors prior to the happening of the default or event
permitting the holders of Class C Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be held with all such
other shares and the Class C Shares voting together as a single class for such
directors, resulting in the termination of the term of such previously elected
directors upon the election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the Class C
Shares at the time outstanding, voting separately as a class, given in person or by
proxy either in writing or at a meeting called for the purpose, shall be necessary
to effect either of the following:




          (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of Class C Shares which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class C Shares or of any
shares ranking on a parity with or junior to the Class C Shares nor the amendment of
the provisions of the Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed to affect adversely
and materially preferences or voting or other rights of the holders of Class C
Shares; or




          (2) The authorization, creation or increase in the authorized number of any
shares, or any security convertible into shares, in either case ranking prior to
such series of Class C Shares.




     (e) In the event, and only to the extent, that (1) Class C Shares are issued
in more than one series and (2) Ohio law permits the holders of a series of a class
of capital stock to vote separately as a class, the affirmative vote of the holders
of at least two-thirds of each series of Class C Shares at the time outstanding,
voting separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects adversely
and materially the preferences or voting or other rights



27









 







of the holders of such series which are set forth in these Amended and
Restated Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as amended, so
as to authorize, create or change the authorized or outstanding number of Class C
Shares or of any shares ranking on a parity with or junior to the Class C Shares
nor the Amendment of the provisions of the Code of Regulations so as to change the
number or classification of directors of the Corporation shall be deemed to affect
adversely and materially the preferences or voting or other rights of the holders
of such series.




     Section 6. 83/8% Class C Cumulative Redeemable Preferred Shares.
Of the 750,000 authorized Class C Shares, 460,000 shares are designated as a series entitled
“83/8% Class C Cumulative Redeemable Preferred Shares” (hereinafter
called “83/8% Class C Preferred Shares”). The
83/8% Class C Preferred Shares shall have the express terms set forth
in this Division as being applicable to all Class C Shares as a class and, in addition, the
following express terms applicable to all 83/8% Class C Preferred
Shares as a series of Class C Shares:




     (a) The annual dividend rate of the 83/8% Class C
Preferred Shares shall be 83/8% of the liquidation preference
of $250.00 per share.




     (b) Dividends on the 83/8% Class C Preferred Shares
shall be payable, if declared, quarterly on or about the fifteenth day of March,
June, September, and December each year, the first quarterly dividend being
payable, if declared, on September 15, 1998. The dividends payable for each full
quarterly dividend period on each 83/8% Class C Preferred
Share shall be $5.234375.




     Dividends for the initial dividend period on the 83/8%
Class C Preferred Shares, or for any period shorter or longer than a full dividend
period on the 83/8% Class C Preferred Shares, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months. The
aggregate dividend payable quarterly to each holder of 83/8%
Class C Preferred Shares shall be rounded to the nearest one-hundredth of one cent
with $.00005 being rounded upward. Each dividend shall be payable to the holders of
record on such record date, no less than 10 nor more than 30 days preceding the
payment date thereof, as shall be fixed from time to time by the Corporation’s Board
of Directors.




     (c) Dividends on 83/8% Class C Preferred Shares shall be
cumulative as follows:




          (1) With respect to shares included in the initial issue of
83/8% Class C Preferred Shares and shares issued any time
thereafter up to and including the record date for the payment of the first dividend
on the initial issue of 83/8% Class C Preferred Shares,
dividends shall be cumulative from the date of the initial issue of
83/8% Class C Preferred Shares; and



28









 






          (2) With respect to shares issued any time after the aforesaid record date,
dividends shall be cumulative from the dividend payment date next preceding the date
of issue of such shares, except that if such shares are issued during the period
commencing the day after the record date for the payment of a dividend on
83/8% Class C Preferred Shares and ending on the payment date
of that dividend, dividends with respect to such shares shall be cumulative from
that dividend payment date.




     (d) Except as required to preserve the Corporation’s status as a real estate
investment trust under the Internal Revenue Code of 1986, as amended, the
83/8% Class C Preferred Shares may not be redeemed prior to
July 7, 2003. At any time or from time to time on and after July 7, 2003 the
Corporation, at its option upon not less than thirty (30) nor more than sixty (60)
days’ written notice, may redeem all or any part of the 83/8%
Class C Preferred Shares at a redemption price of $250.00 per share plus, in each
case, an amount equal to all dividends accrued and unpaid thereon to the redemption
date, without interest. The redemption price (other than the portion thereof
consisting of accrued and unpaid dividends) is payable solely out of the sale
proceeds of other capital shares of the Corporation, which may include any equity
securities (including common shares and preferred shares), shares, interests,
participation or other ownership interests (however designated) and any rights
(other than debt securities convertible into or exchangeable for equity
securities), or options to purchase any of the foregoing.




     (e) The amount payable per 83/8% Class C Preferred Share
in the event of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation shall be $250.00, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment.




     (f) All dividend payments made on the 83/8% Class C
Preferred Shares, at any time during which the Corporation is in default in the
payment of dividends on such 83/8% Class C Preferred Shares
for any dividend period, shall, for the purposes of Section 5(b)(1) of this
Division A-III, be deemed to be made in respect of the earliest dividend period
with respect to which the Corporation is in default.



     IV. The Class D Cumulative Preferred Shares. The Class D Shares shall have the following
express terms:




     Section 1. Series. The Class D Shares may be issued from time to time in one or more
series. All Class D Shares shall be of equal rank and shall be identical, except in respect
of the matters that may be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Class D Shares shall rank on
a parity with the Class A Shares, Class B Shares, Class C Shares, Class E Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares and shall be identical to all Class A Shares,



29









 







Class B Shares, Class C Shares, Class E Shares, Class F Shares, Class G Shares, Class H
Shares, Class I Shares, Class J Shares, Class K Shares and Noncumulative Shares except (1)
in respect of the matters that may be fixed by the Board of Directors as provided in clauses
(a) through (i), inclusive, of this Section 1 and (2) only dividends on Cumulative Shares
shall be cumulative as set forth herein. Subject to the provisions of Sections 2 through 5,
both inclusive, and Item XIII of this Division, which provisions shall apply to all Class D
Shares, the Board of Directors hereby is authorized to cause such shares to be issued in one
or more series and, with respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in clause (b) of this Section), the
following:




     (a) The designation of the series, which may be by distinguishing number,
letter or title;




     (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);




     (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




     (d) The date or dates from which dividends shall accrue and be cumulative and
the dates on which and the period or periods for which dividends, if declared,
shall be payable, including the means by which such dates and periods may be
established;




     (e) The redemption rights and price or prices, if any, for shares of the
series;




     (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;




     (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;




     (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and




     (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item IV) on the issuance of shares of the same series or of any other class or
series.



          The Board of Directors is authorized to adopt from time to time amendments to the Amended and
Restated Articles of Incorporation, as amended, fixing, with respect to each


30









 







such series, the matters described in clauses (a) through (i), inclusive, of this Section and
is authorized to take such actions with respect thereto as may be required by law in order to
effect such amendments.




          Section 2. Dividends.





     (a) The holders of Class D Shares of each series, in preference to the holders
of Common Shares and of any other class of shares ranking junior to the Class D
Shares, shall be entitled to receive out of any funds legally available therefor,
and when and as declared by the Board of Directors, dividends in cash at the rate
or rates for such series fixed in accordance with the provisions of Section 1 above
and no more, payable on the dates fixed for such series. Such dividends shall
accrue and be cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class D Shares for any
dividend period unless at the same time (i) a like proportionate dividend for the
dividend periods terminating on the same or any earlier date, ratably in proportion
to the respective annual dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Class D Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date (but, with
respect to Noncumulative Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend rates fixed therefor,
shall have been paid upon or declared or set apart for all Class A Shares, Class B
Shares, Class C Shares, Class E Shares, Class F Shares, Class G Shares, Class H
Shares, Class I Shares, Class J Shares, Class K Shares and Noncumulative Shares
then issued and outstanding and entitled to receive such dividends.




     (b) So long as any Class D Shares shall be outstanding no dividend, except a
dividend payable in Common Shares or other shares ranking junior to the Class D
Shares, shall be paid or declared or any distribution be made, except as aforesaid,
in respect of the Common Shares or any other shares ranking junior to the Class D
Shares, nor shall any Common Shares or any other shares ranking junior to the Class
D Shares be purchased, retired or otherwise acquired by the Corporation, except out
of the proceeds of the sale of Common Shares or other shares of the Corporation
ranking junior to the Class D Shares received by the Corporation subsequent to the
date of first issuance of Class D Shares of any series, unless:




          (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;




          (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment therefor
set apart; and



31









 






          (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund provided for
shares of such series in accordance with the provisions of Section 1 of this Item
IV.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption retirement or other acquisition
of, Common Shares or any other shares ranking on a parity with or junior to the
Class D Shares shall be inapplicable to (i) any payments in lieu of issuance of
fractional shares thereof, whether upon any merger, conversion, stock dividend or
otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its rights pursuant to
Item XIV(d) of this Division A, Section 4(d) of Division B or any similar Section
hereafter contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock hereafter
created or authorized.




     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Class D Shares shall
be the amount that the total dividends paid or made available to the holders of the
Class D Shares for the year bears to the Total Dividends.



          Section 3. Redemption.





     (a) Subject to the express terms of each series, the Corporation:




          (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Class D Shares at the time outstanding at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item IV; and




          (2) Shall, from time to time, make such redemptions of each series of Class D
Shares as may be required to fulfill the requirements of any sinking fund provided
for shares of such series at the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this Item IV; and shall in each case
pay all accrued and unpaid dividends to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Class D Shares to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days nor
more than 60 days prior to the date fixed for such redemption, or such other time
prior thereto as the Board of Directors shall fix for any series



32









 







pursuant to Section 1 of this Item IV prior to the issuance thereof. At any
time after notice as provided above has been deposited in the mail, the Corporation
may deposit the aggregate redemption price of Class D Shares to be redeemed,
together with accrued and unpaid dividends thereon to the redemption date, with any
bank or trust company in Cleveland, Ohio, or New York, New York, having capital and
surplus of not less than $100,000,000 named in such notice and direct that there be
paid to the respective holders of the Class D Shares so to be redeemed amounts
equal to the redemption price of the Class D Shares so to be redeemed, together
with such accrued and unpaid dividends thereon, on surrender of the share
certificate or certificates held by such holders; and upon the deposit of such
notice in the mail and the making of such deposit of money with such bank or trust
company, such holders shall cease to be shareholders with respect to such shares;
and from and after the time such notice shall have been so deposited and such
deposit of money shall have been so made, such holders shall have no rights or
claim against the Corporation with respect to such shares, except only the right to
receive such money from such bank or trust company without interest or to exercise
before the redemption date any unexpired privileges of conversion. In the event
less than all of the outstanding Class D Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such manner as shall be
prescribed by the Board of Directors.




          (2) If the holders of Class D Shares which have been called for redemption
shall not within six years after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and to
such holders.




     (c) Any Class D Shares which are (1) redeemed by the Corporation pursuant to
the provisions of this Section, (2) purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series, (3) converted in
accordance with the express terms thereof, or (4) otherwise acquired by the
Corporation shall resume the status of authorized but unissued Class D Shares
without serial designation.




     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated Articles
of Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not purchase or redeem
(for sinking fund purposes or otherwise) less than all of the Class D Shares then
outstanding except in accordance with a stock purchase offer made to all holders of
record of Class D Shares, unless all dividends on all Class D Shares then
outstanding for all previous and current dividend periods shall have been declared
and paid or funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.



33









 





          Section 4. Liquidation.





     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of Class D
Shares of any series shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or distributed
among the holders of the Common Shares or any other shares ranking junior to the
Class D Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item IV, plus an amount equal to all dividends
accrued and unpaid thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of the Corporation. In
the event the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all outstanding
Cumulative Shares and Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.




          (2) After payment to the holders of Class D Shares of the full preferential
amounts as aforesaid, the holders of Class D Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.




     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other Corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be
deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.



          Section 5. Voting.





     (a) The holders of Class D Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Class D Shares at the time outstanding,
whether or not earned or declared, for a number of dividend payment periods,
whether consecutive or not, which in the aggregate contain at least 540 days, all
holders of such Class D Shares, voting separately as a class, together with all
Class A Shares, Class B Shares, Class C Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the Board of Directors of
the Corporation; provided, however, that the holders of such Class D Shares shall
not exercise such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not less than
50% of such Class D Shares are present in person or by proxy; and provided



34









 







further that the special class voting rights provided for in this paragraph
when the same shall have become vested shall remain so vested until all accrued and
unpaid dividends on such Class D Shares then outstanding shall have been paid or
declared and a sum sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class D Shares shall be divested of their special
class voting rights in respect of subsequent elections of directors, subject to the
revesting of such special class voting rights in the event above specified in this
paragraph. All dividend payments made on the Class D Shares, at any time during
which the Corporation is in default in the payment of dividends on such Class D
Shares for any dividend period, shall be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation is in default.




          (2) In the event of default entitling holders of Class D Shares to elect two
directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Class D Shares upon which such default in
the payment of dividends exists and notice thereof shall be given in the same manner
as that required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual meeting
of shareholders shall be called to be held within 90 days after the date of receipt
of the foregoing written request from the holders of Class D Shares. At any meeting
at which such holders of Class D Shares shall be entitled to elect directors,
holders of 50% of such Class D Shares, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders of a majority of such
shares so present at any such meeting at which there shall be such a quorum shall be
sufficient to elect the members of the Board of Directors which such holders of
Class D Shares are entitled to elect as herein provided. Notwithstanding any
provision of these Amended and Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the Corporation, the two directors
who may be elected by such holders of Class D Shares pursuant to this Subsection
shall serve in addition to any other directors then in office or proposed to be
elected otherwise than pursuant to this Subsection. Nothing in this Subsection
shall prevent any change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the resignation of any
director elected otherwise than pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the two directors elected
by such holders of Class D Shares shall be elected annually for terms expiring at
the next succeeding annual meeting of shareholders.




          (3) Upon any divesting of the special class voting rights of the holders of the
Class D Shares in respect of elections of directors as provided in this Subsection,
the terms of office of all directors then in office elected by such holders shall
terminate immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death,



35









 







resignation, removal from office or otherwise, the remaining director elected
by such holders voting as a class may elect a successor who shall hold office for
the unexpired term in respect of which such vacancy occurred.




     (c) If at any time when the holders of Class D Shares are entitled to elect
directors pursuant to the foregoing provisions of this Section the holders of any
Class A Shares, Class B Shares, Class C Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares or
Noncumulative Shares are entitled to elect directors pursuant hereto by reason of
any default in the payment of dividends thereon, then the voting rights of the
Cumulative Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes proportional to the
aggregate liquidation preference of its outstanding shares). In such case, the
holders of Class D Shares and of all such other shares then entitled so to vote,
voting as a class, shall elect such directors. If the holders of any such other
shares have elected such directors prior to the happening of the default or event
permitting the holders of Class D Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be held with all such
other shares and the Class D Shares voting together as a single class for such
directors, resulting in the termination of the term of such previously elected
directors upon the election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the Class D
Shares at the time outstanding, voting separately as a class, given in person or by
proxy either in writing or at a meeting called for the purpose, shall be necessary
to effect either of the following:




          (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of Class D Shares which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class D Shares or of any
shares ranking on a parity with or junior to the Class D Shares nor the amendment of
the provisions of the Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed to affect adversely
and materially preferences or voting or other rights of the holders of Class D
Shares; or




          (2) The authorization, creation or increase in the authorized number of any
shares, or any security convertible into shares, in either case ranking prior to
such series of Class D Shares.



36









 






     (e) In the event, and only to the extent, that (1) Class D Shares are issued
in more than one series and (2) Ohio law permits the holders of a series of a class
of capital stock to vote separately as a class, the affirmative vote of the holders
of at least two-thirds of each series of Class D Shares at the time outstanding,
voting separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects adversely
and materially the preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated Articles of Incorporation,
as amended; provided, however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Class D Shares or of any shares ranking on a
parity with or junior to the Class D Shares nor the Amendment of the provisions of
the Code of Regulations so as to change the number or classification of directors
of the Corporation shall be deemed to affect adversely and materially the
preferences or voting or other rights of the holders of such series.




     Section 6. 8.68% Class D Cumulative Redeemable Preferred Shares. Of the 750,000
authorized Class D Shares, 230,000 shares are designated as a series entitled “8.68% Class D
Cumulative Redeemable Preferred Shares” (hereinafter called “8.68% Class D Preferred
Shares”). The 8.68% Class D Preferred Shares shall have the express terms set forth in this
Division as being applicable to all Class D Shares as a class and, in addition, the
following express terms applicable to all 8.68% Class D Preferred Shares as a series of
Class D Shares:




     (a) The annual dividend rate of the 8.68% Class D Preferred Shares shall be
8.68% of the liquidation preference of $250.00 per share.




     (b) Dividends on the 8.68% Class D Preferred Shares shall be payable, if
declared, quarterly on or about the fifteenth day of March, June, September, and
December each year, the first quarterly dividend being payable, if declared, on
December 15, 1998. The dividends payable for each full quarterly dividend period
on each 8.68% Class D Preferred Share shall be $5.425.




     Dividends for the initial dividend period on the 8.68% Class D Preferred
Shares, or for any period shorter or longer than a full dividend period on the 8.68%
Class D Preferred Shares, shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. The aggregate dividend payable quarterly to
each holder of 8.68% Class D Preferred Shares shall be rounded to the nearest
one-hundredth of one cent with $.00005 being rounded upward. Each dividend shall be
payable to the holders of record on such record date, no less than 10 nor more than
30 days preceding the payment date thereof, as shall be fixed from time to time by
the Corporation’s Board of Directors.



37









 






     (c) Dividends on 8.68% Class D Preferred Shares shall be cumulative as
follows:




          (1) With respect to shares included in the initial issue of 8.68% Class D
Preferred Shares and shares issued any time thereafter up to and including the
record date for the payment of the first dividend on the initial issue of 8.68%
Class D Preferred Shares, dividends shall be cumulative from the date of the initial
issue of 8.68% Class D Preferred Shares; and




          (2) With respect to shares issued any time after the aforesaid record date,
dividends shall be cumulative from the dividend payment date next preceding the date
of issue of such shares, except that if such shares are issued during the period
commencing the day after the record date for the payment of a dividend on 8.68 %
Class D Preferred Shares and ending on the payment date of that dividend, dividends
with respect to such shares shall be cumulative from that dividend payment date.




     (d) Except as required to preserve the Corporation’s status as a real estate
investment trust under the Internal Revenue Code of 1986, as amended, the 8.68%
Class D Preferred Shares may not be redeemed prior to August 20, 2003. At any time
or from time to time on and after August 20, 2003 the Corporation, at its option
upon not less than thirty (30) nor more than sixty (60) days’ written notice, may
redeem all or any part of the 8.68% Class D Preferred Shares at a redemption price
of $250.00 per share plus, in each case, an amount equal to all dividends accrued
and unpaid thereon to the redemption date, without interest. The redemption price
(other than the portion thereof consisting of accrued and unpaid dividends) is
payable solely out of the sale proceeds of other capital shares of the Corporation,
which may include any equity securities (including common shares and preferred
shares), shares, interests, participation or other ownership interests (however
designated) and any rights (other than debt securities convertible into or
exchangeable for equity securities), or options to purchase any of the foregoing.




     (e) The amount payable per 8.68% Class D Preferred Share in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs of
the Corporation shall be $250.00, plus an amount equal to all dividends accrued and
unpaid thereon to the date of payment.




     (f) All dividend payments made on the 8.68% Class D Preferred Shares, at any
time during which the Corporation is in default in the payment of dividends on such
8.68% Class D Preferred Shares for any dividend period, shall, for the purposes of
Section 5(b)(1) of this Division A-IV, be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation is in default.



38









 





     V. The Class E Cumulative Preferred Shares. The Class E Shares shall have the following
express terms:




     Section 1. Series. The Class E Shares may be issued from time to time in one or more
series. All Class E Shares shall be of equal rank and shall be identical, except in respect
of the matters that may be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Class E Shares shall rank on
a parity with the Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class F
Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares and shall be identical to all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares and Noncumulative Shares except (1) in respect of the matters
that may be fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on Cumulative Shares shall be cumulative
as set forth herein. Subject to the provisions of Sections 2 through 5, both inclusive, and
Item XIII of this Division, which provisions shall apply to all Class E Shares, the Board of
Directors hereby is authorized to cause such shares to be issued in one or more series and,
with respect to each such series to determine and fix prior to the issuance thereof (and
thereafter, to the extent provided in clause (b) of this Section), the following:




     (a) The designation of the series, which may be by distinguishing number,
letter or title;




     (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);




     (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




     (d) The date or dates from which dividends shall accrue and be cumulative and
the dates on which and the period or periods for which dividends, if declared,
shall be payable, including the means by which such dates and periods may be
established;




     (e) The redemption rights and price or prices, if any, for shares of the
series;




     (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;




     (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;



39









 






     (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and




     (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item V) on the issuance of shares of the same series or of any other class or
series.



          The Board of Directors is authorized to adopt from time to time amendments to the Amended and
Restated Articles of Incorporation, as amended, fixing, with respect to each such series, the
matters described in clauses (a) through (i), inclusive, of this Section and is authorized to take
such actions with respect thereto as may be required by law in order to effect such amendments.




          Section 2. Dividends.





     (a) The holders of Class E Shares of each series, in preference to the holders
of Common Shares and of any other class of shares ranking junior to the Class E
Shares, shall be entitled to receive out of any funds legally available therefor,
and when and as declared by the Board of Directors, dividends in cash at the rate
or rates for such series fixed in accordance with the provisions of Section 1 above
and no more, payable on the dates fixed for such series. Such dividends shall
accrue and be cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class E Shares for any
dividend period unless at the same time (i) a like proportionate dividend for the
dividend periods terminating on the same or any earlier date, ratably in proportion
to the respective annual dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Class E Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date (but, with
respect to Noncumulative Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend rates fixed therefor,
shall have been paid upon or declared or set apart for all Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class F Shares, Class G Shares, Class H
Shares, Class I Shares, Class J Shares, Class K Shares and Noncumulative Shares
then issued and outstanding and entitled to receive such dividends.




     (b) So long as any Class E Shares shall be outstanding no dividend, except a
dividend payable in Common Shares or other shares ranking junior to the Class E
Shares, shall be paid or declared or any distribution be made, except as aforesaid,
in respect of the Common Shares or any other shares ranking junior to the Class E
Shares, nor shall any Common Shares or any other shares ranking junior to the Class
E Shares be purchased, retired or otherwise acquired by the Corporation, except out
of the proceeds of the sale of Common Shares or other




40












 






shares of the Corporation ranking junior to the Class E Shares received by the
Corporation subsequent to the date of first issuance of Class E Shares of any
series, unless:




               (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;




               (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment therefor
set apart; and




               (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund provided for
shares of such series in accordance with the provisions of Section 1 of this Item V.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption retirement or other acquisition
of, Common Shares or any other shares ranking on a parity with or junior to the
Class E Shares shall be inapplicable to (i) any payments in lieu of issuance of
fractional shares thereof, whether upon any merger, conversion, stock dividend or
otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its rights pursuant to
Item XIV(d) of this Division A, Section 4(d) of Division B or any similar Section
hereafter contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock hereafter
created or authorized.




     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Class E Shares shall
be the amount that the total dividends paid or made available to the holders of the
Class E Shares for the year bears to the Total Dividends.



          Section 3. Redemption.





     (a) Subject to the express terms of each series, the Corporation:




               (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Class E Shares at the time outstanding at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item V; and



41









 






               (2) Shall, from time to time, make such redemptions of each series of Class E
Shares as may be required to fulfill the requirements of any sinking fund provided
for shares of such series at the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this Item V; and shall in each case
pay all accrued and unpaid dividends to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Class E Shares to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days nor
more than 60 days prior to the date fixed for such redemption, or such other time
prior thereto as the Board of Directors shall fix for any series pursuant to
Section 1 of this Item V prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may deposit the
aggregate redemption price of Class E Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any bank or trust company
in Cleveland, Ohio, or New York, New York, having capital and surplus of not less
than $100,000,000 named in such notice and direct that there be paid to the
respective holders of the Class E Shares so to be redeemed amounts equal to the
redemption price of the Class E Shares so to be redeemed, together with such
accrued and unpaid dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of such notice in the mail
and the making of such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such shares; and from and
after the time such notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or claim against the
Corporation with respect to such shares, except only the right to receive such
money from such bank or trust company without interest or to exercise before the
redemption date any unexpired privileges of conversion. In the event less than all
of the outstanding Class E Shares are to be redeemed, the Corporation shall select
by lot the shares so to be redeemed in such manner as shall be prescribed by the
Board of Directors.




               (2) If the holders of Class E Shares which have been called for redemption
shall not within six years after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and to
such holders.




     (c) Any Class E Shares which are (1) redeemed by the Corporation pursuant to
the provisions of this Section, (2) purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series, (3) converted in
accordance with the express terms thereof, or (4) otherwise acquired by the
Corporation shall resume the status of authorized but unissued Class E Shares
without serial designation.



42









 






     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated Articles
of Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not purchase or redeem
(for sinking fund purposes or otherwise) less than all of the Class E Shares then
outstanding except in accordance with a stock purchase offer made to all holders of
record of Class E Shares, unless all dividends on all Class E Shares then
outstanding for all previous and current dividend periods shall have been declared
and paid or funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.



          Section 4. Liquidation.





     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of Class E
Shares of any series shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or distributed
among the holders of the Common Shares or any other shares ranking junior to the
Class E Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item V, plus an amount equal to all dividends
accrued and unpaid thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of the Corporation. In
the event the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all outstanding
Cumulative Shares and Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.




               (2) After payment to the holders of Class E Shares of the full preferential
amounts as aforesaid, the holders of Class E Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.




     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other Corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be
deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.



          Section 5. Voting.





     (a) The holders of Class E Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Class E Shares at the time outstanding,



43









 







whether or not earned or declared, for a number of dividend payment periods,
whether consecutive or not, which in the aggregate contain at least 540 days, all
holders of such Class E Shares, voting separately as a class, together with all
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the Board of Directors of
the Corporation; provided, however, that the holders of such Class E Shares shall
not exercise such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not less than
50% of such Class E Shares are present in person or by proxy; and provided further
that the special class voting rights provided for in this paragraph when the same
shall have become vested shall remain so vested until all accrued and unpaid
dividends on such Class E Shares then outstanding shall have been paid or declared
and a sum sufficient for the payment thereof set aside for payment, whereupon the
holders of such Class E Shares shall be divested of their special class voting
rights in respect of subsequent elections of directors, subject to the revesting of
such special class voting rights in the event above specified in this paragraph.
All dividend payments made on the Class E Shares, at any time during which the
Corporation is in default in the payment of dividends on such Class E Shares for
any dividend period, shall be deemed to be made in respect of the earliest dividend
period with respect to which the Corporation is in default.




               (2) In the event of default entitling holders of Class E Shares to elect two
directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Class E Shares upon which such default in
the payment of dividends exists and notice thereof shall be given in the same manner
as that required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual meeting
of shareholders shall be called to be held within 90 days after the date of receipt
of the foregoing written request from the holders of Class E Shares. At any meeting
at which such holders of Class E Shares shall be entitled to elect directors,
holders of 50% of such Class E Shares, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders of a majority of such
shares so present at any such meeting at which there shall be such a quorum shall be
sufficient to elect the members of the Board of Directors which such holders of
Class E Shares are entitled to elect as herein provided. Notwithstanding any
provision of these Amended and Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the Corporation, the two directors
who may be elected by such holders of Class E Shares pursuant to this Subsection
shall serve in addition to any other directors then in office or proposed to be
elected otherwise than pursuant to this Subsection. Nothing in this Subsection
shall prevent any change otherwise



44









 







permitted in the total number of or classifications of directors of the
Corporation or require the resignation of any director elected otherwise than
pursuant to this Subsection. Notwithstanding any classification of the other
directors of the Corporation, the two directors elected by such holders of Class E
Shares shall be elected annually for terms expiring at the next succeeding annual
meeting of shareholders.




               (3) Upon any divesting of the special class voting rights of the holders of the
Class E Shares in respect of elections of directors as provided in this Subsection,
the terms of office of all directors then in office elected by such holders shall
terminate immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by such holders voting as a
class may elect a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred.




     (c) If at any time when the holders of Class E Shares are entitled to elect
directors pursuant to the foregoing provisions of this Section the holders of any
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares or
Noncumulative Shares are entitled to elect directors pursuant hereto by reason of
any default in the payment of dividends thereon, then the voting rights of the
Cumulative Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes proportional to the
aggregate liquidation preference of its outstanding shares). In such case, the
holders of Class E Shares and of all such other shares then entitled so to vote,
voting as a class, shall elect such directors. If the holders of any such other
shares have elected such directors prior to the happening of the default or event
permitting the holders of Class E Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be held with all such
other shares and the Class E Shares voting together as a single class for such
directors, resulting in the termination of the term of such previously elected
directors upon the election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the Class E
Shares at the time outstanding, voting separately as a class, given in person or by
proxy either in writing or at a meeting called for the purpose, shall be necessary
to effect either of the following:




               (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of Class E Shares which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as



45









 







amended, so as to authorize, create or change the authorized or outstanding
number of Class E Shares or of any shares ranking on a parity with or junior to the
Class E Shares nor the amendment of the provisions of the Code of Regulations so as
to change the number or classification of directors of the Corporation shall be
deemed to affect adversely and materially preferences or voting or other rights of
the holders of Class E Shares; or




               (2) The authorization, creation or increase in the authorized number of any
shares, or any security convertible into shares, in either case ranking prior to
such series of Class E Shares.




     (e) In the event, and only to the extent, that (1) Class E Shares are issued
in more than one series and (2) Ohio law permits the holders of a series of a class
of capital stock to vote separately as a class, the affirmative vote of the holders
of at least two-thirds of each series of Class E Shares at the time outstanding,
voting separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects adversely
and materially the preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated Articles of Incorporation,
as amended; provided, however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Class E Shares or of any shares ranking on a
parity with or junior to the Class E Shares nor the Amendment of the provisions of
the Code of Regulations so as to change the number or classification of directors
of the Corporation shall be deemed to affect adversely and materially the
preferences or voting or other rights of the holders of such series.



          Section 6. Class E Series I Cumulative Preferred Shares.





     (a) DESIGNATION AND AMOUNT. Of the 750,000 authorized Class E Cumulative
Preferred Shares, without par value, 750,000 are designated as a series designated
as “Class E Series I Cumulative Preferred Shares” (the “Series I Preferred
Shares”). The Series I Preferred Shares have the express terms set forth in this
Division as being applicable to all Preferred Shares as a class and, in addition,
the following express terms applicable to all Series I Preferred Shares as a series
of Preferred Shares. The number of Series I Preferred Shares may be increased or
decreased by resolution of the Board of Directors and by the filing of a
certificate of amendment pursuant to the provisions of the General Corporation Law
of the State of Ohio stating that such increase or reduction has been so
authorized; however, no decrease shall reduce the number of Series I Preferred
Shares to a number less than that of the Series I Preferred Shares then outstanding
plus the number of Series I Preferred Shares issuable upon exercise



46









 







of outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Company.




     (b) DIVIDENDS AND DISTRIBUTIONS.




               (1) (i) Subject to the rights of the holders of any series of preferred shares
(or any similar shares) ranking prior to the Series I Preferred Shares with respect
to dividends, the holders of Series I Preferred Shares, in preference to the holders
of Common Shares and of any other junior shares, will be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the fifteenth day of March, June,
September and December in each year (each such date being referred to herein as a
“Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a Series I Preferred Share or fraction
thereof, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $10.00 or (b) subject to the provisions for adjustment hereinafter set forth,
10,000 times the aggregate per share amount of all cash dividends, and 10,000 times
the aggregate per share amount (payable in kind) of all noncash dividends or other
distributions other than a dividend payable in Common Shares or a subdivision of the
outstanding Common Shares (by reclassification or otherwise), declared on the Common
Shares after the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, after the first issuance of
any Series I Preferred Share or fraction thereof. The multiple of cash and noncash
dividends declared on the Common Shares to which holders of the Series I Preferred
Shares are entitled, which is 10,000 initially but which will be adjusted from time
to time as hereinafter provided, is hereinafter referred to as the “Dividend
Multiple.” If the Company at any time after May 26, 1999 (the “Rights Declaration
Date”): (i) declares or pays any dividend on the Common Shares payable in Common
Shares, or (ii) effects a subdivision or combination or consolidation of the
outstanding Common Shares (by reclassification or otherwise than by payment of a
dividend in Common Shares) into a greater or lesser number of Common Shares, then in
each such case the Dividend Multiple thereafter applicable to the determination of
the amount of dividends that holders of Series I Preferred Shares are entitled to
receive will be the Dividend Multiple applicable immediately prior to that event
multiplied by a fraction, the numerator of which is the number of Common Shares
outstanding immediately after that event and the denominator of which is the number
of Common Shares that were outstanding immediately prior to that event.




     (ii) Notwithstanding anything else contained in this paragraph
(1), the Company shall, out of funds legally available for that
purpose, declare a dividend or distribution on the Series I Preferred
Shares as provided in this paragraph (1) immediately after it
declares a dividend or distribution on the Common Shares (other than
a dividend payable in Common Shares); but if no dividend or
distribution has been declared on the Common Shares



47









 







during the period between any Quarterly Dividend Payment Date
and the next subsequent Quarterly Dividend Payment Date, a dividend
of $10.00 per share on the Series I Preferred Shares shall
nevertheless accrue on such subsequent Quarterly Dividend Payment
Date.




               (2) Dividends will begin to accrue and be cumulative on outstanding Series I
Preferred Shares from the Quarterly Dividend Payment Date next preceding the date of
issue of such Series I Preferred Shares, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares will begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of Series I Preferred
Shares entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends will begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends
will not bear interest. Dividends paid on the Series I Preferred Shares in an
amount less than the total amount of such dividends at the time accrued and payable
on such shares will be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix in accordance with
applicable law a record date for the determination of holders of Series I Preferred
Shares entitled to receive payment of a dividend or distribution declared thereon,
which record date will be not more than such number of days prior to the date fixed
for the payment thereof as may be allowed by applicable law.




     (c) REACQUIRED SHARES. Any Series I Preferred Shares purchased or otherwise
acquired by the Company in any manner whatsoever will be retired and canceled
promptly after the acquisition thereof. All such shares will upon their
cancellation become authorized but unissued preferred shares and may be reissued as
part of a new series of Preferred Shares to be created by resolution or resolutions
of the Board of Directors, subject to the conditions and restrictions on issuance
set forth herein.




     (d) LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation (voluntary or
otherwise), dissolution or winding up of the Company, no distribution may be made
(x) to the holders of shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series I Preferred Shares unless,
prior thereto, the holders of Series I Preferred Shares shall have received an
amount equal to accrued and unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment, plus an amount equal to the greater of
(1) $10,000.00 per share or (2) an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 10,000 times the aggregate
amount to be distributed per share to holders of Common Shares, or (y) to the
holders of shares ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series I Preferred Shares, except distributions
made ratably on the Series I Preferred



48









 







Shares and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. If the Company at any time after the Rights Declaration
Date (i) declares or pays any dividend on Common Shares payable in Common Shares,
or (ii) effects a subdivision or combination or consolidation of the outstanding
Common Shares (by reclassification or otherwise than by payment of a dividend in
Common Shares) into a greater or lesser number of Common Shares, then in each such
case the aggregate amount per share to which holders of Series I Preferred Shares
were entitled immediately prior to such event under clause (x) of the preceding
sentence will be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of Common Shares outstanding immediately after such event
and the denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.




     Neither the consolidation of nor merging of the Company with or into any other
corporation or corporations, nor the sale or other transfer of all or substantially
all of the assets of the Company, will be considered to be a liquidation,
dissolution or winding up of the Company within the meaning of this paragraph (d).




     (e) CONSOLIDATION, MERGER, ETC. If the Company shall enter into any
consolidation, merger, combination or other transaction in which the Common Shares
are exchanged for or changed into other shares, stock or securities, cash or any
other property, then in any such case the Series I Preferred Shares will at the
same time be similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 10,000 times the aggregate
amount of shares, stock, securities, or other property, as the case may be, into
which or for which each Common Share is changed or exchanged, plus accrued and
unpaid dividends, if any, payable with respect to the Series I Preferred Shares. If
the Company at any time after the Rights Declaration Date (i) declares or pays any
dividend on Common Shares payable in Common Shares, or (ii) effects a subdivision
or combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common Shares) into
a greater or lesser number of Common Shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of Series I
Preferred Shares will be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of Common Shares outstanding immediately after
such event and the denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.




     (f) REDEMPTION. The Series I Preferred Shares are not redeemable, but the
foregoing does not limit the ability of the Company to purchase or otherwise deal
in the Series I Preferred Shares to the extent otherwise permitted hereby and by
law.



49









 






     (g) AMENDMENT. The Amended and Restated Articles of Incorporation of the
Company, as amended, may not be amended in any manner that would materially alter
or change the powers, preferences or special rights of the Series I Preferred
Shares so as to affect them adversely without the affirmative vote of the holders
of at least two-thirds of the outstanding Series I Preferred Shares, voting
separately as a class.




     (h) FRACTIONAL SHARES. Series I Preferred Shares may be issued in whole shares
or in any fraction of a share that is one ten-thousandth (1/10,000th) of a share or
any integral multiple of such fraction, which will entitle the holder, in
proportion to such holder’s fractional shares, to exercise voting rights, receive
dividends, participate in distributions and have the benefit of all other rights of
holders of Series I Preferred Shares. In lieu of fractional shares, the Company may
elect to make a cash payment as provided in that certain Rights Agreement dated as
of May 26, 1999, between the Company and National City Bank, a national banking
association, as rights agent, for fractions of a share smaller than one
ten-thousandth (1/10,000th) of a share or any integral multiple thereof.



     VI. The Class F Cumulative Preferred Shares. The Class F Shares shall have the following
express terms:




     Section 1. Series. The Class F Shares may be issued from time to time in one or more
series. All Class F Shares shall be of equal rank and shall be identical, except in respect
of the matters that may be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Class F Shares shall rank on
a parity with the Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares and shall be identical to all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class G Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares and Noncumulative Shares except (1) in respect of the matters
that may be fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on Cumulative Shares shall be cumulative
as set forth herein. Subject to the provisions of Sections 2 through 5, both inclusive, and
Item XIII of this Division, which provisions shall apply to all Class F Shares, the Board of
Directors hereby is authorized to cause such shares to be issued in one or more series and,
with respect to each such series to determine and fix prior to the issuance thereof (and
thereafter, to the extent provided in clause (b) of this Section), the following:




     (a) The designation of the series, which may be by distinguishing number,
letter or title;




     (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);



50









 






     (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




     (d) The date or dates from which dividends shall accrue and be cumulative and
the dates on which and the period or periods for which dividends, if declared,
shall be payable, including the means by which such dates and periods may be
established;




     (e) The redemption rights and price or prices, if any, for shares of the
series;




     (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;




     (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;




     (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and




     (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item VI) on the issuance of shares of the same series or of any other class or
series.




     The Board of Directors is authorized to adopt from time to time amendments to the
Amended and Restated Articles of Incorporation, as amended, fixing, with respect to each
such series, the matters described in clauses (a) through (i), inclusive, of this Section
and is authorized to take such actions with respect thereto as may be required by law in
order to effect such amendments.



          Section 2. Dividends.





     (a) The holders of Class F Shares of each series, in preference to the holders
of Common Shares and of any other class of shares ranking junior to the Class F
Shares, shall be entitled to receive out of any funds legally available therefor,
and when and as declared by the Board of Directors, dividends in cash at the rate
or rates for such series fixed in accordance with the provisions of Section 1 above
and no more, payable on the dates fixed for such series. Such dividends shall
accrue and be cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class F Shares for any
dividend period unless at the same time (i) a like proportionate dividend for the
dividend periods terminating on the same or any earlier date, ratably in proportion
to the respective annual dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Class F Shares of all series



51









 







then issued and outstanding and entitled to receive such dividend and (ii) the
dividends payable for the dividend periods terminating on the same or any earlier
date (but, with respect to Noncumulative Shares, only with respect to the then
current dividend period), ratably in proportion to the respective dividend rates
fixed therefor, shall have been paid upon or declared or set apart for all Class A
Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares then issued and outstanding and entitled to receive such
dividends.




     (b) So long as any Class F Shares shall be outstanding no dividend, except a
dividend payable in Common Shares or other shares ranking junior to the Class F
Shares, shall be paid or declared or any distribution be made, except as aforesaid,
in respect of the Common Shares or any other shares ranking junior to the Class F
Shares, nor shall any Common Shares or any other shares ranking junior to the Class
F Shares be purchased, retired or otherwise acquired by the Corporation, except out
of the proceeds of the sale of Common Shares or other shares of the Corporation
ranking junior to the Class F Shares received by the Corporation subsequent to the
date of first issuance of Class F Shares of any series, unless:




               (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;




               (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment therefor
set apart; and




               (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund provided for
shares of such series in accordance with the provisions of Section 1 of this Item
VI.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption retirement or other acquisition
of, Common Shares or any other shares ranking on a parity with or junior to the
Class F Shares shall be inapplicable to (i) any payments in lieu of issuance of
fractional shares thereof, whether upon any merger, conversion, stock dividend or
otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its rights pursuant to
Item XIV(d) of this Division A, Section 4(d) of Division B or any similar Section
hereafter contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock hereafter
created or authorized.



52









 






     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Class F Shares shall
be the amount that the total dividends paid or made available to the holders of the
Class F Shares for the year bears to the Total Dividends.



          Section 3. Redemption.





     (a) Subject to the express terms of each series, the Corporation:




               (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Class F Shares at the time outstanding at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item VI; and




               (2) Shall, from time to time, make such redemptions of each series of Class F
Shares as may be required to fulfill the requirements of any sinking fund provided
for shares of such series at the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this Item VI; and shall in each case
pay all accrued and unpaid dividends to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Class F Shares to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days nor
more than 60 days prior to the date fixed for such redemption, or such other time
prior thereto as the Board of Directors shall fix for any series pursuant to
Section 1 of this Item VI prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may deposit the
aggregate redemption price of Class F Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any bank or trust company
in Cleveland, Ohio, or New York, New York, having capital and surplus of not less
than $100,000,000 named in such notice and direct that there be paid to the
respective holders of the Class F Shares so to be redeemed amounts equal to the
redemption price of the Class F Shares so to be redeemed, together with such
accrued and unpaid dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of such notice in the mail
and the making of such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such shares; and from and
after the time such notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or claim against the
Corporation with respect to such shares, except only the right to receive such
money from such bank or trust company without interest or to exercise before the
redemption date any



53









 







unexpired privileges of conversion. In the event less than all of the
outstanding Class F Shares are to be redeemed, the Corporation shall select by lot
the shares so to be redeemed in such manner as shall be prescribed by the Board of
Directors.




               (2) If the holders of Class F Shares which have been called for redemption
shall not within six years after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and to
such holders.




     (c) Any Class F Shares which are (1) redeemed by the Corporation pursuant to
the provisions of this Section, (2) purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series, (3) converted in
accordance with the express terms thereof, or (4) otherwise acquired by the
Corporation shall resume the status of authorized but unissued Class F Shares
without serial designation.




     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated Articles
of Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not purchase or redeem
(for sinking fund purposes or otherwise) less than all of the Class F Shares then
outstanding except in accordance with a stock purchase offer made to all holders of
record of Class F Shares, unless all dividends on all Class F Shares then
outstanding for all previous and current dividend periods shall have been declared
and paid or funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.



          Section 4. Liquidation.





     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of Class F
Shares of any series shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or distributed
among the holders of the Common Shares or any other shares ranking junior to the
Class F Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item VI, plus an amount equal to all dividends
accrued and unpaid thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of the Corporation. In
the event the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all



54









 







outstanding Cumulative Shares and Noncumulative Shares in proportion to the
full preferential amount to which each such share is entitled.




               (2) After payment to the holders of Class F Shares of the full preferential
amounts as aforesaid, the holders of Class F Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.




     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other Corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be
deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.



          Section 5. Voting.





     (a) The holders of Class F Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Class F Shares at the time outstanding,
whether or not earned or declared, for a number of dividend payment periods,
whether consecutive or not, which in the aggregate contain at least 540 days, all
holders of such Class F Shares, voting separately as a class, together with all
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the Board of Directors of
the Corporation; provided, however, that the holders of such Class F Shares shall
not exercise such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not less than
50% of such Class F Shares are present in person or by proxy; and provided further
that the special class voting rights provided for in this paragraph when the same
shall have become vested shall remain so vested until all accrued and unpaid
dividends on such Class F Shares then outstanding shall have been paid or declared
and a sum sufficient for the payment thereof set aside for payment, whereupon the
holders of such Class F Shares shall be divested of their special class voting
rights in respect of subsequent elections of directors, subject to the revesting of
such special class voting rights in the event above specified in this paragraph.
All dividend payments made on the Class F Shares, at any time during which the
Corporation is in default in the payment of dividends on such Class F Shares for
any dividend period, shall be deemed to be made in respect of the earliest dividend
period with respect to which the Corporation is in default.




               (2) In the event of default entitling holders of Class F Shares to elect two
directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the



55









 







Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Class F Shares upon which such default in
the payment of dividends exists and notice thereof shall be given in the same manner
as that required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual meeting
of shareholders shall be called to be held within 90 days after the date of receipt
of the foregoing written request from the holders of Class F Shares. At any meeting
at which such holders of Class F Shares shall be entitled to elect directors,
holders of 50% of such Class F Shares, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders of a majority of such
shares so present at any such meeting at which there shall be such a quorum shall be
sufficient to elect the members of the Board of Directors which such holders of
Class F Shares are entitled to elect as herein provided. Notwithstanding any
provision of these Amended and Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the Corporation, the two directors
who may be elected by such holders of Class F Shares pursuant to this Subsection
shall serve in addition to any other directors then in office or proposed to be
elected otherwise than pursuant to this Subsection. Nothing in this Subsection
shall prevent any change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the resignation of any
director elected otherwise than pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the two directors elected
by such holders of Class F Shares shall be elected annually for terms expiring at
the next succeeding annual meeting of shareholders.




               (3) Upon any divesting of the special class voting rights of the holders of the
Class F Shares in respect of elections of directors as provided in this Subsection,
the terms of office of all directors then in office elected by such holders shall
terminate immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by such holders voting as a
class may elect a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred.




     (c) If at any time when the holders of Class F Shares are entitled to elect
directors pursuant to the foregoing provisions of this Section the holders of any
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares or
Noncumulative Shares are entitled to elect directors pursuant hereto by reason of
any default in the payment of dividends thereon, then the voting rights of the
Cumulative Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes proportional to the
aggregate liquidation preference of its outstanding shares). In such case, the
holders of Class F Shares and of all such other shares then entitled so to vote,
voting as a class, shall elect such directors. If the holders of any such other



56









 







shares have elected such directors prior to the happening of the default or
event permitting the holders of Class F Shares to elect directors, or prior to a
written request for the holding of a special meeting being received by the
Secretary of the Corporation as required above, then a new election shall be held
with all such other shares and the Class F Shares voting together as a single class
for such directors, resulting in the termination of the term of such previously
elected directors upon the election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the Class F
Shares at the time outstanding, voting separately as a class, given in person or by
proxy either in writing or at a meeting called for the purpose, shall be necessary
to effect either of the following:




               (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of Class F Shares which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class F Shares or of any
shares ranking on a parity with or junior to the Class F Shares nor the amendment of
the provisions of the Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed to affect adversely
and materially preferences or voting or other rights of the holders of Class F
Shares; or




               (2) The authorization, creation or increase in the authorized number of any
shares, or any security convertible into shares, in either case ranking prior to
such series of Class F Shares.




     (e) In the event, and only to the extent, that (1) Class F Shares are issued
in more than one series and (2) Ohio law permits the holders of a series of a class
of capital stock to vote separately as a class, the affirmative vote of the holders
of at least two-thirds of each series of Class F Shares at the time outstanding,
voting separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects adversely
and materially the preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated Articles of Incorporation,
as amended; provided, however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Class F Shares or of any shares ranking on a
parity with or junior to the Class F Shares nor the Amendment of the provisions of
the Code of



57









 







Regulations so as to change the number or classification of directors of the
Corporation shall be deemed to affect adversely and materially the preferences or
voting or other rights of the holders of such series.




     Section 6. 8.60% Class F Cumulative Redeemable Preferred Shares. Of the 750,000
authorized Class F Shares, 690,000 shares are designated as a series entitled “8.60% Class F
Cumulative Redeemable Preferred Shares” (hereinafter called “8.60% Class F Preferred
Shares”). The 8.60% Class F Preferred Shares shall have the express terms set forth in this
Division as being applicable to all Class F Shares as a class and, in addition, the
following express terms applicable to all 8.60% Class F Preferred Shares as a series of
Class F Shares:




     (a) The annual dividend rate of the 8.60% Class F Preferred Shares shall be
8.60% of the liquidation preference of $250.00 per share.




     (b) Dividends on the 8.60% Class F Preferred Shares shall be payable, if
declared, quarterly on or about the fifteenth day of March, June, September, and
December each year, the first quarterly dividend being payable, if declared, on
June 15, 2002. The dividends payable for each full quarterly dividend period on
each 8.60% Class F Preferred Shares shall be $0.5375. Dividends for the initial
dividend period on the 8.60% Class F Preferred Shares, or for any period shorter or
longer than a full dividend period on the 8.60% Class F Preferred Shares, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months. The
aggregate dividend payable quarterly to each holder of 8.60% Class F Preferred
Shares shall be rounded to the nearest one one-hundredth of one cent with $.00005
being rounded upward. Each dividend shall be payable to the holders of record on
such record date, no less than 10 nor more than 30 days preceding the payment date
thereof, as shall be fixed from time to time by the Corporation’s Board of
Directors.




     (c) Dividends on 8.60% Class F Preferred Shares shall be cumulative as
follows:




               (1) With respect to shares included in the initial issue of 8.60% Class F
Preferred Shares and shares issued any time thereafter up to and including the
record date for the payment of the first dividend on the initial issue of 8.60%
Class F Preferred Shares, dividends shall be cumulative from the date of the initial
issue of 8.60% Class F Preferred Shares; and




               (2) With respect to shares issued any time after the aforesaid record date,
dividends shall be cumulative from the dividend payment date next preceding the date
of issue of such shares, except that if such shares are issued during the period
commencing the day after the record date for the payment of a dividend on 8.60%
Class F Preferred Shares and ending on the payment date of that dividend, dividends
with respect to such shares shall be cumulative from that dividend payment date.



58









 






     (d) Except as required to preserve the Corporation’s status as a real estate
investment trust under the Internal Revenue Code of 1986, as amended, the 8.60%
Class F Preferred Shares may not be redeemed prior to March 27, 2007. At any time
or from time to time on and after March 27, 2007 the Corporation, at its option
upon not less than thirty (30) nor more than sixty (60) days’ written notice, may
redeem all or any part of the 8.60% Class F Preferred Shares at a redemption price
of $250.00 per share plus, in each case, an amount equal to all dividends accrued
and unpaid thereon to the redemption date, without interest. The redemption price
(other than the portion thereof consisting of accrued and unpaid dividends) is
payable solely out of the sale proceeds of other capital shares of the Corporation,
which may include any equity securities (including common shares and preferred
shares), shares, interests, participation or other ownership interests (however
designated) and any rights (other than debt securities convertible into or
exchangeable for equity securities), or options to purchase any of the foregoing.




     (e) The amount payable per 8.60% Class F Preferred Share in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs of
the Corporation shall be $250.00, plus an amount equal to all dividends accrued and
unpaid thereon to the date of payment.




     (f) All dividend payments made on the 8.60% Class F Preferred Shares, at any
time during which the Corporation is in default in the payment of dividends on such
8.60% Class F Preferred Shares for any dividend period, shall, for the purposes of
Section 5(b)(1) of this Division A-VI, be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation is in default.



     VII. The Class G Cumulative Preferred Shares. The Class G Shares shall have the following
express terms:




     Section 1. Series. The Class G Shares may be issued from time to time in one or more
series. All Class G Shares shall be of equal rank and shall be identical, except in respect
of the matters that may be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Class G Shares shall rank on
a parity with the Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares and shall be identical to all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares and Noncumulative Shares except (1) in respect of the matters
that may be fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on Cumulative Shares shall be cumulative
as set forth herein. Subject to the provisions of Sections 2 through 5, both inclusive, and
Item XIII of this Division, which provisions shall apply to all Class G Shares, the Board of
Directors hereby is authorized to cause such shares to be issued in one or more series and,
with respect to each such series to determine and fix



59









 







prior to the issuance thereof (and thereafter, to the extent provided in clause (b) of
this Section) the following:




     (a) The designation of the series, which may be by distinguishing number,
letter or title;




     (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);




     (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




     (d) The date or dates from which dividends shall accrue and be cumulative and
the dates on which and the period or periods for which dividends, if declared,
shall be payable, including the means by which such dates and periods may be
established;




     (e) The redemption rights and price or prices, if any, for shares of the
series;




     (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;




     (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;




     (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and




     (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item VII) on the issuance of shares of the same series or of any other class
or series.



          The Board of Directors is authorized to adopt from time to time amendments to the Amended and
Restated Articles of Incorporation, as amended, fixing, with respect to each such series, the
matters described in clauses (a) through (i), inclusive, of this Section and is authorized to take
such actions with respect thereto as may be required by law in order to effect such amendments.




          Section 2. Dividends.





     (a) The holders of Class G Shares of each series, in preference to the holders
of Common Shares and of any other class of shares ranking junior to the




60












 






Class G Shares, shall be entitled to receive out of any funds legally
available therefor, and when and as declared by the Board of Directors, dividends
in cash at the rate or rates for such series fixed in accordance with the
provisions of Section 1 above and no more, payable on the dates fixed for such
series. Such dividends shall accrue and be cumulative, in the case of shares of
each particular series, from and after the date or dates fixed with respect to such
series. No dividends shall be paid upon or declared or set apart for any series of
the Class G Shares for any dividend period unless at the same time (i) a like
proportionate dividend for the dividend periods terminating on the same or any
earlier date, ratably in proportion to the respective annual dividend rates fixed
therefor, shall have been paid upon or declared or set apart for all Class G Shares
of all series then issued and outstanding and entitled to receive such dividend and
(ii) the dividends payable for the dividend periods terminating on the same or any
earlier date (but, with respect to Noncumulative Shares, only with respect to the
then current dividend period), ratably in proportion to the respective dividend
rates fixed therefor, shall have been paid upon or declared or set apart for all
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares then issued and outstanding and entitled to receive such
dividends.




     (b) So long as any Class G Shares shall be outstanding no dividend, except a
dividend payable in Common Shares or other shares ranking junior to the Class G
Shares, shall be paid or declared or any distribution be made, except as aforesaid,
in respect of the Common Shares or any other shares ranking junior to the Class G
Shares, nor shall any Common Shares or any other shares ranking junior to the Class
G Shares be purchased, retired or otherwise acquired by the Corporation, except out
of the proceeds of the sale of Common Shares or other shares of the Corporation
ranking junior to the Class G Shares received by the Corporation subsequent to the
date of first issuance of Class G Shares of any series, unless:




          (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;




          (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment therefor
set apart; and




          (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund provided for shares of such series in accordance with the provisions of Section 1 of this Item
VII.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption retirement or other acquisition



61









 






of, Common Shares or any other shares ranking on a parity with or junior to
the Class G Shares shall be inapplicable to (i) any payments in lieu of issuance of
fractional shares thereof, whether upon any merger, conversion, stock dividend or
otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its rights pursuant to
Item XIV(d) of this Division A, Section 4(d) of Division B or any similar Section
hereafter contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock hereafter
created or authorized.




     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Class G Shares shall
be the amount that the total dividends paid or made available to the holders of the
Class G Shares for the year bears to the Total Dividends.




Section 3. Redemption.




     (a) Subject to the express terms of each series, the Corporation:




          (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Class G Shares at the time outstanding at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item VII; and




          (2) Shall, from time to time, make such redemptions of each series of Class G
Shares as may be required to fulfill the requirements of any sinking fund provided
for shares of such series at the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this Item VII; and shall in each case
pay all accrued and unpaid dividends to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Class G Shares to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days nor
more than 60 days prior to the date fixed for such redemption, or such other time
prior thereto as the Board of Directors shall fix for any series pursuant to
Section 1 of this Item VII prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may deposit the
aggregate redemption price of Class G Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any bank or trust company
in Cleveland, Ohio, or New York, New York, having capital and surplus of not less
than $100,000,000 named in such notice and direct that there be paid to the
respective holders of the Class G Shares so to be



62









 






redeemed amounts equal to the redemption price of the Class G Shares so to be
redeemed, together with such accrued and unpaid dividends thereon, on surrender of
the share certificate or certificates held by such holders; and upon the deposit of
such notice in the mail and the making of such deposit of money with such bank or
trust company, such holders shall cease to be shareholders with respect to such
shares; and from and after the time such notice shall have been so deposited and
such deposit of money shall have been so made, such holders shall have no rights or
claim against the Corporation with respect to such shares, except only the right to
receive such money from such bank or trust company without interest or to exercise
before the redemption date any unexpired privileges of conversion. In the event
less than all of the outstanding Class G Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such manner as shall be
prescribed by the Board of Directors.




          (2) If the holders of Class G Shares which have been called for redemption
shall not within six years after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and to
such holders.




     (c) Any Class G Shares which are (1) redeemed by the Corporation pursuant to
the provisions of this Section, (2) purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series, (3) converted in
accordance with the express terms thereof, or (4) otherwise acquired by the
Corporation shall resume the status of authorized but unissued Class G Shares
without serial designation.




     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated Articles
of Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not purchase or redeem
(for sinking fund purposes or otherwise) less than all of the Class G Shares then
outstanding except in accordance with a stock purchase offer made to all holders of
record of Class G Shares, unless all dividends on all Class G Shares then
outstanding for all previous and current dividend periods shall have been declared
and paid or funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.




Section 4. Liquidation.




     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of Class G
Shares of any series shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or distributed



63









 






among the holders of the Common Shares or any other shares ranking junior to
the Class G Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item VII, plus an amount equal to all dividends
accrued and unpaid thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of the Corporation. In
the event the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all outstanding
Cumulative Shares and Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.




          (2) After payment to the holders of Class G Shares of the full preferential
amounts as aforesaid, the holders of Class G Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.




     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other Corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be
deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.




Section 5. Voting.




     (a) The holders of Class G Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Class G Shares at the time outstanding,
whether or not earned or declared, for a number of dividend payment periods,
whether consecutive or not, which in the aggregate contain at least 540 days, all
holders of such Class G Shares, voting separately as a class, together with all
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the Board of Directors of
the Corporation; provided, however, that the holders of such Class G Shares shall
not exercise such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not less than
50% of such Class G Shares are present in person or by proxy; and provided further
that the special class voting rights provided for in this paragraph when the same
shall have become vested shall remain so vested until all accrued and unpaid
dividends on such Class G Shares then outstanding shall have been paid or declared
and a sum sufficient for the payment thereof set aside for payment, whereupon the
holders of such Class G Shares shall be divested of their special class voting
rights in respect of subsequent elections of directors, subject to the



64









 






revesting of such special class voting rights in the event above specified in
this paragraph. All dividend payments made on the Class G Shares, at any time
during which the Corporation is in default in the payment of dividends on such
Class G Shares for any dividend period, shall be deemed to be made in respect of
the earliest dividend period with respect to which the Corporation is in default.




          (2) In the event of default entitling holders of Class G Shares to elect two
directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Class G Shares upon which such default in
the payment of dividends exists and notice thereof shall be given in the same manner
as that required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual meeting
of shareholders shall be called to be held within 90 days after the date of receipt
of the foregoing written request from the holders of Class G Shares. At any meeting
at which such holders of Class G Shares shall be entitled to elect directors,
holders of 50% of such Class G Shares, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders of a majority of such
shares so present at any such meeting at which there shall be such a quorum shall be
sufficient to elect the members of the Board of Directors which such holders of
Class G Shares are entitled to elect as herein provided. Notwithstanding any
provision of these Amended and Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the Corporation, the two directors
who may be elected by such holders of Class G Shares pursuant to this Subsection
shall serve in addition to any other directors then in office or proposed to be
elected otherwise than pursuant to this Subsection. Nothing in this Subsection
shall prevent any change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the resignation of any
director elected otherwise than pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the two directors elected
by such holders of Class G Shares shall be elected annually for terms expiring at
the next succeeding annual meeting of shareholders.




          (3) Upon any divesting of the special class voting rights of the holders of
the Class G Shares in respect of elections of directors as provided in this
Subsection, the terms of office of all directors then in office elected by such
holders shall terminate immediately thereupon. If the office of any director
elected by such holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.




     (c) If at any time when the holders of Class G Shares are entitled to elect
directors pursuant to the foregoing provisions of this Section the holders of any



65









 






Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class H Shares, Class I Shares, Class J Shares, Class K
Shares or Noncumulative Shares are entitled to elect directors pursuant hereto by
reason of any default in the payment of dividends thereon, then the voting rights
of the Cumulative Shares and the Noncumulative Shares then entitled to vote shall
be combined (with each class of shares having a number of votes proportional to the
aggregate liquidation preference of its outstanding shares). In such case, the
holders of Class G Shares and of all such other shares then entitled so to vote,
voting as a class, shall elect such directors. If the holders of any such other
shares have elected such directors prior to the happening of the default or event
permitting the holders of Class G Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be held with all such
other shares and the Class G Shares voting together as a single class for such
directors, resulting in the termination of the term of such previously elected
directors upon the election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the Class G
Shares at the time outstanding, voting separately as a class, given in person or by
proxy either in writing or at a meeting called for the purpose, shall be necessary
to effect either of the following:




          (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of Class G Shares which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class G Shares or of any
shares ranking on a parity with or junior to the Class G Shares nor the amendment of
the provisions of the Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed to affect adversely
and materially preferences or voting or other rights of the holders of Class G
Shares; or




          (2) The authorization, creation or increase in the authorized number of any
shares, or any security convertible into shares, in either case ranking prior to
such series of Class G Shares.




     (e) In the event, and only to the extent, that (1) Class G Shares are issued
in more than one series and (2) Ohio law permits the holders of a series of a class
of capital stock to vote separately as a class, the affirmative vote of the holders
of at least two-thirds of each series of Class G Shares at the time outstanding,
voting separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or



66









 






otherwise, of any of the provisions of these Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of such series which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class G Shares or of any
shares ranking on a parity with or junior to the Class G Shares nor the Amendment
of the provisions of the Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed to affect adversely
and materially the preferences or voting or other rights of the holders of such
series.




     Section 6. 8% Class G Cumulative Redeemable Preferred Shares. Of the 750,000 authorized
Class G Shares, 736,000 shares are designated as a series entitled “8% Class G Cumulative
Redeemable Preferred Shares” (hereinafter called “8% Class G Preferred Shares”). The 8%
Class G Preferred Shares shall have the express terms set forth in this Division as being
applicable to all Class G Shares as a class and, in addition, the following express terms
applicable to all 8% Class G Preferred Shares as a series of Class G Shares:




     (a) The annual dividend rate of the 8% Class G Preferred Shares shall be 8% of
the liquidation preference of $250.00 per share.




     (b) Dividends on the 8% Class G Preferred Shares shall be payable, if
declared, quarterly in arrears on or about the fifteenth day of each March, June,
September, and December or, if not a business day, the next succeeding business
day, the first quarterly dividend being payable, if declared, on June 16, 2003. The
dividends payable for each full quarterly dividend period on each 8% Class G
Preferred Shares shall be $5.00.




     Dividends for the initial dividend period on the 8% Class G Preferred Shares,
or for any period shorter or longer than a full dividend period on the 8% Class G
Preferred Shares, shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. The aggregate dividend payable quarterly to each holder of 8%
Class G Preferred Shares shall be rounded to the nearest one one-hundredth of one
cent with $.00005 being rounded upward. Each dividend shall be payable to the
holders of record on such record date, no less than 10 nor more than 30 days
preceding the payment date thereof, as shall be fixed from time to time by the
Corporation’s Board of Directors.




     (c) Dividends on 8% Class G Preferred Shares shall be cumulative as follows:




          (1) With respect to shares included in the initial issue of 8% Class G
Preferred Shares and shares issued any time thereafter up to and including the
record date for the payment of the first dividend on the initial issue of 8% Class G



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Preferred Shares, dividends shall be cumulative from the date of the initial
issue of 8% Class G Preferred Shares; and




          (2) With respect to shares issued any time after the aforesaid record date,
dividends shall be cumulative from the dividend payment date next preceding the date
of issue of such shares, except that if such shares are issued during the period
commencing the day after the record date for the payment of a dividend on 8% Class G
Preferred Shares and ending on the payment date of that dividend, dividends with
respect to such shares shall be cumulative from that dividend payment date.




     (d) Except as required to preserve the Corporation’s status as a real estate
investment trust under the Internal Revenue Code of 1986, as amended, the 8% Class
G Preferred Shares may not be redeemed prior to March 28, 2008. At any time or from
time to time on and after March 28, 2008 the Corporation, at its option upon not
less than thirty (30) nor more than sixty (60) days’ written notice, may redeem all
or any part of the 8% Class G Preferred Shares at a redemption price of $250.00 per
share plus, in each case, an amount equal to all dividends accrued and unpaid
thereon to the redemption date, without interest.




     (e) The amount payable per 8% Class G Preferred Share in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs of
the Corporation shall be $250.00, plus an amount equal to all dividends accrued and
unpaid thereon to the date of payment.




     (f) All dividend payments made on the 8% Class G Preferred Shares, at any time
during which the Corporation is in default in the payment of dividends on such 8%
Class G Preferred Shares for any dividend period, shall, for the purposes of
Section 5(b)(1) of this Division A-VII, be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation is in default.



     VIII. The Class H Cumulative Preferred Shares. The Class H Shares shall have the following
express terms:




     Section 1. Series. The Class H Shares may be issued from time to time in one or more
series. All Class H Shares shall be of equal rank and shall be identical, except in respect
of the matters that may be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Class H Shares shall rank on
a parity with the Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares and shall be identical to all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares, Class I Shares,
Class J Shares, Class K Shares and Noncumulative Shares except (1) in respect of the matters
that may be fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on Cumulative



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Shares shall be cumulative as set forth herein. Subject to the provisions of Sections
2 through 5, both inclusive, and Item XIII of this Division, which provisions shall apply to
all Class H Shares, the Board of Directors hereby is authorized to cause such shares to be
issued in one or more series and, with respect to each such series to determine and fix
prior to the issuance thereof (and thereafter, to the extent provided in clause (b) of this
Section), the following:




     (a) The designation of the series, which may be by distinguishing number,
letter or title;




     (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);




     (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




     (d) The date or dates from which dividends shall accrue and be cumulative and
the dates on which and the period or periods for which dividends, if declared,
shall be payable, including the means by which such dates and periods may be
established;




     (e) The redemption rights and price or prices, if any, for shares of the
series;




     (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;




     (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;




     (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and




     (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item VIII) on the issuance of shares of the same series or of any other class
or series.



          The Board of Directors is authorized to adopt from time to time amendments to the Amended and
Restated Articles of Incorporation, as amended, fixing, with respect to each such series, the
matters described in clauses (a) through (i), inclusive, of this Section and is authorized to take
such actions with respect thereto as may be required by law in order to effect such amendments.



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Section 2. Dividends.




     (a) The holders of Class H Shares of each series, in preference to the holders
of Common Shares and of any other class of shares ranking junior to the Class H
Shares, shall be entitled to receive out of any funds legally available therefor,
and when and as declared by the Board of Directors, dividends in cash at the rate
or rates for such series fixed in accordance with the provisions of Section 1 above
and no more, payable on the dates fixed for such series. Such dividends shall
accrue and be cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class H Shares for any
dividend period unless at the same time (i) a like proportionate dividend for the
dividend periods terminating on the same or any earlier date, ratably in proportion
to the respective annual dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Class H Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date (but, with
respect to Noncumulative Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend rates fixed therefor,
shall have been paid upon or declared or set apart for all Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class I Shares, Class J Shares, Class K Shares and Noncumulative Shares
then issued and outstanding and entitled to receive such dividends.




     (b) So long as any Class H Shares shall be outstanding no dividend, except a
dividend payable in Common Shares or other shares ranking junior to the Class H
Shares, shall be paid or declared or any distribution be made, except as aforesaid,
in respect of the Common Shares or any other shares ranking junior to the Class H
Shares, nor shall any Common Shares or any other shares ranking junior to the Class
H Shares be purchased, retired or otherwise acquired by the Corporation, except out
of the proceeds of the sale of Common Shares or other shares of the Corporation
ranking junior to the Class H Shares received by the Corporation subsequent to the
date of first issuance of Class H Shares of any series, unless:




          (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;




          (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment therefor
set apart; and




          (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund



70









 






provided for shares of such series in accordance with the provisions of Section
1 of this Item VIII.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption retirement or other acquisition
of, Common Shares or any other shares ranking on a parity with or junior to the
Class H Shares shall be inapplicable to (i) any payments in lieu of issuance of
fractional shares thereof, whether upon any merger, conversion, stock dividend or
otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its rights pursuant to
Item XIV(d) of this Division A, Section 4(d) of Division B or any similar Section
hereafter contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock hereafter
created or authorized.




     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Class H Shares shall
be the amount that the total dividends paid or made available to the holders of the
Class H Shares for the year bears to the Total Dividends.




Section 3. Redemption.




     (a) Subject to the express terms of each series, the Corporation:




          (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Class H Shares at the time outstanding at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item VIII; and




          (2) Shall, from time to time, make such redemptions of each series of Class H
Shares as may be required to fulfill the requirements of any sinking fund provided
for shares of such series at the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this Item VIII; and shall in each
case pay all accrued and unpaid dividends to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Class H Shares to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days nor
more than 60 days prior to the date fixed for such redemption, or such other time
prior thereto as the Board of Directors shall fix for any series pursuant to
Section 1 of this Item VIII prior to the issuance thereof. At any time after
notice as provided above has been deposited in the mail, the Corporation



71









 






may deposit the aggregate redemption price of Class H Shares to be redeemed,
together with accrued and unpaid dividends thereon to the redemption date, with any
bank or trust company in Cleveland, Ohio, or New York, New York, having capital and
surplus of not less than $100,000,000 named in such notice and direct that there be
paid to the respective holders of the Class H Shares so to be redeemed amounts
equal to the redemption price of the Class H Shares so to be redeemed, together
with such accrued and unpaid dividends thereon, on surrender of the share
certificate or certificates held by such holders; and upon the deposit of such
notice in the mail and the making of such deposit of money with such bank or trust
company, such holders shall cease to be shareholders with respect to such shares;
and from and after the time such notice shall have been so deposited and such
deposit of money shall have been so made, such holders shall have no rights or
claim against the Corporation with respect to such shares, except only the right to
receive such money from such bank or trust company without interest or to exercise
before the redemption date any unexpired privileges of conversion. In the event
less than all of the outstanding Class H Shares are to be redeemed, the Corporation
shall select by lot the shares so to be redeemed in such manner as shall be
prescribed by the Board of Directors.




          (2) If the holders of Class H Shares which have been called for redemption
shall not within six years after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and to
such holders.




     (c) Any Class H Shares which are (1) redeemed by the Corporation pursuant to
the provisions of this Section, (2) purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series, (3) converted in
accordance with the express terms thereof, or (4) otherwise acquired by the
Corporation shall resume the status of authorized but unissued Class H Shares
without serial designation.




     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated Articles
of Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not purchase or redeem
(for sinking fund purposes or otherwise) less than all of the Class H Shares then
outstanding except in accordance with a stock purchase offer made to all holders of
record of Class H Shares, unless all dividends on all Class H Shares then
outstanding for all previous and current dividend periods shall have been declared
and paid or funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.





72









 





Section 4. Liquidation.



     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of Class H
Shares of any series shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or distributed
among the holders of the Common Shares or any other shares ranking junior to the
Class H Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item VIII, plus an amount equal to all dividends
accrued and unpaid thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of the Corporation. In
the event the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all outstanding
Cumulative Shares and Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.




          (2) After payment to the holders of Class H Shares of the full preferential
amounts as aforesaid, the holders of Class H Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.




     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other Corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be
deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.




Section 5. Voting.




     (a) The holders of Class H Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Class H Shares at the time outstanding,
whether or not earned or declared, for a number of dividend payment periods,
whether consecutive or not, which in the aggregate contain at least 540 days, all
holders of such Class H Shares, voting separately as a class, together with all
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the Board of Directors of
the Corporation; provided, however, that the holders of such Class H Shares shall
not exercise such special class voting rights except at meetings of



73









 






such shareholders for the election of directors at which the holders of not
less than 50% of such Class H Shares are present in person or by proxy; and
provided further that the special class voting rights provided for in this
paragraph when the same shall have become vested shall remain so vested until all
accrued and unpaid dividends on such Class H Shares then outstanding shall have
been paid or declared and a sum sufficient for the payment thereof set aside for
payment, whereupon the holders of such Class H Shares shall be divested of their
special class voting rights in respect of subsequent elections of directors,
subject to the revesting of such special class voting rights in the event above
specified in this paragraph. All dividend payments made on the Class H Shares, at
any time during which the Corporation is in default in the payment of dividends on
such Class H Shares for any dividend period, shall be deemed to be made in respect
of the earliest dividend period with respect to which the Corporation is in
default.




          (2) In the event of default entitling holders of Class H Shares to elect two
directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Class H Shares upon which such default in
the payment of dividends exists and notice thereof shall be given in the same manner
as that required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual meeting
of shareholders shall be called to be held within 90 days after the date of receipt
of the foregoing written request from the holders of Class H Shares. At any meeting
at which such holders of Class H Shares shall be entitled to elect directors,
holders of 50% of such Class H Shares, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders of a majority of such
shares so present at any such meeting at which there shall be such a quorum shall be
sufficient to elect the members of the Board of Directors which such holders of
Class H Shares are entitled to elect as herein provided. Notwithstanding any
provision of these Amended and Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the Corporation, the two directors
who may be elected by such holders of Class H Shares pursuant to this Subsection
shall serve in addition to any other directors then in office or proposed to be
elected otherwise than pursuant to this Subsection. Nothing in this Subsection
shall prevent any change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the resignation of any
director elected otherwise than pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the two directors elected
by such holders of Class H Shares shall be elected annually for terms expiring at
the next succeeding annual meeting of shareholders.




          (3) Upon any divesting of the special class voting rights of the holders of
the Class H Shares in respect of elections of directors as provided in this
Subsection, the terms of office of all directors then in office elected by such



74









 






holders shall terminate immediately thereupon. If the office of any director
elected by such holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.




     (c) If at any time when the holders of Class H Shares are entitled to elect
directors pursuant to the foregoing provisions of this Section the holders of any
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class I Shares, Class J Shares, Class K Shares or
Noncumulative Shares are entitled to elect directors pursuant hereto by reason of
any default in the payment of dividends thereon, then the voting rights of the
Cumulative Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes proportional to the
aggregate liquidation preference of its outstanding shares). In such case, the
holders of Class H Shares and of all such other shares then entitled so to vote,
voting as a class, shall elect such directors. If the holders of any such other
shares have elected such directors prior to the happening of the default or event
permitting the holders of Class H Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be held with all such
other shares and the Class H Shares voting together as a single class for such
directors, resulting in the termination of the term of such previously elected
directors upon the election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the Class H
Shares at the time outstanding, voting separately as a class, given in person or by
proxy either in writing or at a meeting called for the purpose, shall be necessary
to effect either of the following:




          (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of Class H Shares which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class H Shares or of any
shares ranking on a parity with or junior to the Class H Shares nor the amendment of
the provisions of the Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed to affect adversely
and materially preferences or voting or other rights of the holders of Class H
Shares; or




          (2) The authorization, creation or increase in the authorized number of any
shares, or any security convertible into shares, in either case ranking prior to
such series of Class H Shares.



75









 






     (e) In the event, and only to the extent, that (1) Class H Shares are issued
in more than one series and (2) Ohio law permits the holders of a series of a class
of capital stock to vote separately as a class, the affirmative vote of the holders
of at least two-thirds of each series of Class H Shares at the time outstanding,
voting separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects adversely
and materially the preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated Articles of Incorporation,
as amended; provided, however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Class H Shares or of any shares ranking on a
parity with or junior to the Class H Shares nor the Amendment of the provisions of
the Code of Regulations so as to change the number or classification of directors
of the Corporation shall be deemed to affect adversely and materially the
preferences or voting or other rights of the holders of such series.




     Section 6. 7 3/8% Class H Cumulative Redeemable Preferred Shares. Of the 750,000
authorized Class H Shares, 410,000 shares are designated as a series entitled “7 3/8% Class
H Cumulative Redeemable Preferred Shares” (hereinafter called “7 3/8% Class H Preferred
Shares”). The 7 3/8% Class H Preferred Shares shall have the express terms set forth in this
Division as being applicable to all Class H Shares as a class and, in addition, the
following express terms applicable to all 7 3/8% Class H Preferred Shares as a series of
Class H Shares:




     (a) The annual dividend rate of the 7 3/8% Class H Preferred Shares shall be 7
3/8% of the liquidation preference of $500.00 per share.




     (b) Dividends on the 7 3/8% Class H Preferred Shares shall be payable, if
declared, quarterly in arrears on or about the fifteenth day of each January,
April, July, and October or, if not a business day, the next succeeding business
day, the first quarterly dividend being payable, if declared, on October 15, 2003.
The dividends payable for each full quarterly dividend period on each 7 3/8% Class
H Preferred Shares shall be $9.21875.




     Dividends for the initial dividend period on the 7 3/8% Class H Preferred
Shares, or for any period shorter or longer than a full dividend period on the 7
3/8% Class H Preferred Shares, shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. The aggregate dividend payable quarterly to each
holder of 7 3/8% Class H Preferred Shares shall be rounded to the nearest one
one-hundredth of one cent with $.00005 being rounded upward. Each dividend shall be
payable to the holders of record on such record date, no less than 10 nor more than
30 days preceding the payment date thereof, as shall be fixed from time to time by
the Company’s Board of Directors.



76









 






     (c) Dividends on 7 3/8% Class H Preferred Shares shall be cumulative as
follows:




          (1) With respect to shares included in the initial issue of 7 3/8% Class H
Preferred Shares and shares issued any time thereafter up to and including the
record date for the payment of the first dividend on the initial issue of 7 3/8%
Class H Preferred Shares, dividends shall be cumulative from the date of the initial
issue of 7 3/8% Class H Preferred Shares; and




          (2) With respect to shares issued any time after the aforesaid record date,
dividends shall be cumulative from the dividend payment date next preceding the date
of issue of such shares, except that if such shares are issued during the period
commencing the day after the record date for the payment of a dividend on 7 3/8%
Class H Preferred Shares and ending on the payment date of that dividend, dividends
with respect to such shares shall be cumulative from that dividend payment date.




     (d) Except as required to preserve the Company’s status as a real estate
investment trust under the Internal Revenue Code of 1986, as amended, the 7 3/8%
Class H Preferred Shares may not be redeemed prior to July 28, 2008. At any time or
from time to time on and after July 28, 2008 the Company, at its option upon not
less than thirty (30) nor more than sixty (60) days’ written notice, may redeem all
or any part of the 7 3/8% Class H Preferred Shares at a redemption price of $500.00
per share plus, in each case, an amount equal to all dividends accrued and unpaid
thereon to the redemption date, without interest.




     (e) The amount payable per 7 3/8% Class H Preferred Share in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs of
the Company shall be $500.00, plus an amount equal to all dividends accrued and
unpaid thereon to the date of payment.




     (f) All dividend payments made on the 7 3/8% Class H Preferred Shares, at any
time during which the Company is in default in the payment of dividends on such 7
3/8% Class H Preferred Shares for any dividend period, shall, for the purposes of
Section 5(b)(1) of this Division A-VIII, be deemed to be made in respect of the
earliest dividend period with respect to which the Company is in default.



     IX. The Class I Cumulative Preferred Shares. The Class I Shares shall have the following
express terms:




     Section 1. Series. The Class I Shares may be issued from time to time in one or more
series. All Class I Shares shall be of equal rank and shall be identical, except in respect
of the matters that may be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Class I Shares shall rank on
a parity with the Class A Shares, Class B Shares, Class C Shares, Class D



77









 






Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class J Shares,
Class K Shares and Noncumulative Shares and shall be identical to all Class A Shares, Class
B Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class J Shares, Class K Shares and Noncumulative Shares except (1) in
respect of the matters that may be fixed by the Board of Directors as provided in clauses
(a) through (i), inclusive, of this Section 1 and (2) only dividends on Cumulative Shares
shall be cumulative as set forth herein. Subject to the provisions of Sections 2 through 5,
both inclusive, and Item XIII of this Division, which provisions shall apply to all Class I
Shares, the Board of Directors hereby is authorized to cause such shares to be issued in one
or more series and, with respect to each such series to determine and fix prior to the
issuance thereof (and thereafter, to the extent provided in clause (b) of this Section), the
following:




     (a) The designation of the series, which may be by distinguishing number,
letter or title;




     (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);




     (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




     (d) The date or dates from which dividends shall accrue and be cumulative and
the dates on which and the period or periods for which dividends, if declared,
shall be payable, including the means by which such dates and periods may be
established;




     (e) The redemption rights and price or prices, if any, for shares of the
series;




     (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;




     (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;




     (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and




     (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item IX) on the issuance of shares of the same series or of any other class or
series.



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     The Board of Directors is authorized to adopt from time to time amendments to the Amended and
Restated Articles of Incorporation, as amended, fixing, with respect to each such series, the
matters described in clauses (a) through (i), inclusive, of this Section and is authorized to take
such actions with respect thereto as may be required by law in order to effect such amendments.




Section 2. Dividends.




     (a) The holders of Class I Shares of each series, in preference to the holders
of Common Shares and of any other class of shares ranking junior to the Class I
Shares, shall be entitled to receive out of any funds legally available therefor,
and when and as declared by the Board of Directors, dividends in cash at the rate
or rates for such series fixed in accordance with the provisions of Section 1 above
and no more, payable on the dates fixed for such series. Such dividends shall
accrue and be cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class I Shares for any
dividend period unless at the same time (i) a like proportionate dividend for the
dividend periods terminating on the same or any earlier date, ratably in proportion
to the respective annual dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Class I Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date (but, with
respect to Noncumulative Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend rates fixed therefor,
shall have been paid upon or declared or set apart for all Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class J Shares, Class K Shares and Noncumulative Shares
then issued and outstanding and entitled to receive such dividends.




     (b) So long as any Class I Shares shall be outstanding no dividend, except a
dividend payable in Common Shares or other shares ranking junior to the Class I
Shares, shall be paid or declared or any distribution be made, except as aforesaid,
in respect of the Common Shares or any other shares ranking junior to the Class I
Shares, nor shall any Common Shares or any other shares ranking junior to the Class
I Shares be purchased, retired or otherwise acquired by the Corporation, except out
of the proceeds of the sale of Common Shares or other shares of the Corporation
ranking junior to the Class I Shares received by the Corporation subsequent to the
date of first issuance of Class I Shares of any series, unless:




          (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;



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          (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment therefor
set apart; and




          (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund provided for
shares of such series in accordance with the provisions of Section 1 of this Item
IX.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption retirement or other acquisition
of, Common Shares or any other shares ranking on a parity with or junior to the
Class I Shares shall be inapplicable to (i) any payments in lieu of issuance of
fractional shares thereof, whether upon any merger, conversion, stock dividend or
otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its rights pursuant to
Item XIV(d) of this Division A, Section 4(d) of Division B or any similar Section
hereafter contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock hereafter
created or authorized.




     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Class I Shares shall
be the amount that the total dividends paid or made available to the holders of the
Class I Shares for the year bears to the Total Dividends.




Section 3. Redemption.




     (a) Subject to the express terms of each series, the Corporation:




          (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Class I Shares at the time outstanding at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item IX; and




          (2) Shall, from time to time, make such redemptions of each series of Class I
Shares as may be required to fulfill the requirements of any sinking fund provided
for shares of such series at the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this Item IX; and shall in each case
pay all accrued and unpaid dividends to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Class I Shares to be redeemed at their




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respective addresses then appearing on the books of the Corporation, not less
than 30 days nor more than 60 days prior to the date fixed for such redemption, or
such other time prior thereto as the Board of Directors shall fix for any series
pursuant to Section 1 of this Item IX prior to the issuance thereof. At any time
after notice as provided above has been deposited in the mail, the Corporation may
deposit the aggregate redemption price of Class I Shares to be redeemed, together
with accrued and unpaid dividends thereon to the redemption date, with any bank or
trust company in Cleveland, Ohio, or New York, New York, having capital and surplus
of not less than $100,000,000 named in such notice and direct that there be paid to
the respective holders of the Class I Shares so to be redeemed amounts equal to the
redemption price of the Class I Shares so to be redeemed, together with such
accrued and unpaid dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of such notice in the mail
and the making of such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such shares; and from and
after the time such notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or claim against the
Corporation with respect to such shares, except only the right to receive such
money from such bank or trust company without interest or to exercise before the
redemption date any unexpired privileges of conversion. In the event less than all
of the outstanding Class I Shares are to be redeemed, the Corporation shall select
by lot the shares so to be redeemed in such manner as shall be prescribed by the
Board of Directors.




          (2) If the holders of Class I Shares which have been called for redemption
shall not within six years after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and to
such holders.




     (c) Any Class I Shares which are (1) redeemed by the Corporation pursuant to
the provisions of this Section, (2) purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series, (3) converted in
accordance with the express terms thereof, or (4) otherwise acquired by the
Corporation shall resume the status of authorized but unissued Class I Shares
without serial designation.




     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated Articles
of Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not purchase or redeem
(for sinking fund purposes or otherwise) less than all of the Class I Shares then
outstanding except in accordance with a stock purchase offer made to all holders of
record of Class I Shares, unless all dividends on all Class I



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Shares then outstanding for all previous and current dividend periods shall
have been declared and paid or funds therefor set apart and all accrued sinking
fund obligations applicable thereto shall have been complied with.




Section 4. Liquidation.




     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of Class I
Shares of any series shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or distributed
among the holders of the Common Shares or any other shares ranking junior to the
Class I Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item IX, plus an amount equal to all dividends
accrued and unpaid thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of the Corporation. In
the event the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all outstanding
Cumulative Shares and Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.




          (2) After payment to the holders of Class I Shares of the full preferential
amounts as aforesaid, the holders of Class I Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.




     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other Corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be
deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.




Section 5. Voting.




     (a) The holders of Class I Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Class I Shares at the time outstanding,
whether or not earned or declared, for a number of dividend payment periods,
whether consecutive or not, which in the aggregate contain at least 540 days, all
holders of such Class I Shares, voting separately as a class, together with all
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class J Shares, Class K Shares and
Noncumulative Shares upon which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the Board of



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Directors of the Corporation; provided, however, that the holders of such
Class I Shares shall not exercise such special class voting rights except at
meetings of such shareholders for the election of directors at which the holders of
not less than 50% of such Class I Shares are present in person or by proxy; and
provided further that the special class voting rights provided for in this
paragraph when the same shall have become vested shall remain so vested until all
accrued and unpaid dividends on such Class I Shares then outstanding shall have
been paid or declared and a sum sufficient for the payment thereof set aside for
payment, whereupon the holders of such Class I Shares shall be divested of their
special class voting rights in respect of subsequent elections of directors,
subject to the revesting of such special class voting rights in the event above
specified in this paragraph. All dividend payments made on the Class I Shares, at
any time during which the Corporation is in default in the payment of dividends on
such Class I Shares for any dividend period, shall be deemed to be made in respect
of the earliest dividend period with respect to which the Corporation is in
default.




          (2) In the event of default entitling holders of Class I Shares to elect two
directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Class I Shares upon which such default in
the payment of dividends exists and notice thereof shall be given in the same manner
as that required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual meeting
of shareholders shall be called to be held within 90 days after the date of receipt
of the foregoing written request from the holders of Class I Shares. At any meeting
at which such holders of Class I Shares shall be entitled to elect directors, holders of 50% of such Class I Shares, present in person or by proxy, shall be sufficient to constitute a quorum,
and the vote of the holders of a majority of such shares so present at any such meeting at which there shall be such a quorum shall be sufficient to elect the members of the Board of Directors
which such holders of
Class I Shares are entitled to elect as herein provided. Notwithstanding any
provision of these Amended and Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the Corporation, the two directors
who may be elected by such holders of Class I Shares pursuant to this Subsection
shall serve in addition to any other directors then in office or proposed to be
elected otherwise than pursuant to this Subsection. Nothing in this Subsection
shall prevent any change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the resignation of any
director elected otherwise than pursuant to this Subsection. Notwithstanding any
classification of the other directors of the Corporation, the two directors elected
by such holders of Class I Shares shall be elected annually for terms expiring at
the next succeeding annual meeting of shareholders.



83









 






          (3) Upon any divesting of the special class voting rights of the holders of the
Class I Shares in respect of elections of directors as provided in this Subsection,
the terms of office of all directors then in office elected by such holders shall
terminate immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by such holders voting as a
class may elect a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred.




     (c) If at any time when the holders of Class I Shares are entitled to elect
directors pursuant to the foregoing provisions of this Section the holders of any
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class J Shares, Class K Shares or
Noncumulative Shares are entitled to elect directors pursuant hereto by reason of
any default in the payment of dividends thereon, then the voting rights of the
Cumulative Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes proportional to the
aggregate liquidation preference of its outstanding shares). In such case, the
holders of Class I Shares and of all such other shares then entitled so to vote, voting as a
class, shall elect such directors. If the holders of any such other shares have elected such directors prior to the happening of the default or event
permitting the holders of Class I Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be held with all such
other shares and the Class I Shares voting together as a single class for such
directors, resulting in the termination of the term of such previously elected
directors upon the election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the Class I
Shares at the time outstanding, voting separately as a class, given in person or by
proxy either in writing or at a meeting called for the purpose, shall be necessary
to effect either of the following:




          (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of Class I Shares which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class I Shares or of any
shares ranking on a parity with or junior to the Class I Shares nor the amendment of
the provisions of the Code of Regulations so as to change the number or
classification of directors of the Corporation shall be deemed to affect adversely
and materially preferences or voting or other rights of the holders of Class I
Shares; or



84









 






          (2) The authorization, creation or increase in the authorized number of any
shares, or any security convertible into shares, in either case ranking prior to
such series of Class I Shares.




     (e) In the event, and only to the extent, that (1) Class I Shares are issued
in more than one series and (2) Ohio law permits the holders of a series of a class
of capital stock to vote separately as a class, the affirmative vote of the holders
of at least two-thirds of each series of Class I Shares at the time outstanding,
voting separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects adversely
and materially the preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated Articles of Incorporation,
as amended; provided, however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Class I Shares or of any shares ranking on a
parity with or junior to the Class I Shares nor the Amendment of the provisions of
the Code of Regulations so as to change the number or classification of directors
of the Corporation shall be deemed to affect adversely and materially the
preferences or voting or other rights of the holders of such series.




     Section 6. 7.50% Class I Cumulative Redeemable Preferred Shares. Of the 750,000
authorized Class I Shares, 345,000 shares are designated as a series entitled “7.50% Class I
Cumulative Redeemable Preferred Shares” (hereinafter called “7.50% Class I Preferred
Shares”). The 7.50% Class I Preferred Shares shall have the express terms set forth in this
Division as being applicable to all Class I Shares as a class and, in addition, the
following express terms applicable to all 7.50% Class I Preferred Shares as a series of
Class I Shares:




     (a) The annual dividend rate of the 7.50% Class I Preferred Shares shall be
7.50% of the liquidation preference of $500.00 per share.




     (b) Dividends on the 7.50% Class I Preferred Shares shall be payable, if
declared, quarterly in arrears on or about the fifteenth day of each January,
April, July, and October or, if not a business day, the next succeeding business
day, the first quarterly dividend being payable, if declared, on July 15, 2004. The
dividends payable for each full quarterly dividend period on each 7.50% Class I
Preferred Share shall be $9.375.




     Dividends for the initial dividend period on the 7.50% Class I Preferred
Shares, or for any period shorter or longer than a full dividend period on the 7.50%
Class I Preferred Shares, shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. The aggregate dividend payable quarterly to each
holder of 7.50% Class I Preferred Shares shall be rounded to the nearest one



85









 






one-hundredth of one cent with $.00005 being rounded upward. Each dividend shall be
payable to the holders of record on such record date, no less than 10 nor more than
30 days preceding the payment date thereof, as shall be fixed from time to time by
the Company’s Board of Directors.




     (c) Dividends on 7.50% Class I Preferred Shares shall be cumulative as follows:




          (1) With respect to shares included in the initial issue of 7.50% Class I
Preferred Shares and shares issued any time thereafter up to and including the
record date for the payment of the first dividend on the initial issue of 7.50%
Class I Preferred Shares, dividends shall be cumulative from the date of the initial
issue of 7.50% Class I Preferred Shares; and




          (2) With respect to shares issued any time after the aforesaid record date,
dividends shall be cumulative from the dividend payment date next preceding the date
of issue of such shares, except that if such shares are issued during the period
commencing the day after the record date for the payment of a dividend on 7.50%
Class I Preferred Shares and ending on the payment date of that dividend, dividends
with respect to such shares shall be cumulative from that dividend payment date.




     (d) Except as required to preserve the Company’s status as a real estate
investment trust under the Internal Revenue Code of 1986, as amended, the 7.50%
Class I Preferred Shares may not be redeemed prior to May 7, 2009. At any time or
from time to time on and after May 7, 2009 the Company, at its option upon not less
than thirty (30) nor more than sixty (60) days’ written notice, may redeem all or
any part of the 7.50% Class I Preferred Shares at a redemption price of $500.00 per
share plus, in each case, an amount equal to all dividends accrued and unpaid
thereon to the redemption date, without interest.




     (e) The amount payable per 7.50% Class I Preferred Share in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs of
the Company shall be $500.00, plus an amount equal to all dividends accrued and
unpaid thereon to the date of payment.




     (f) All dividend payments made on the 7.50% Class I Preferred Shares, at any
time during which the Company is in default in the payment of dividends on such
7.50% Class I Preferred Shares for any dividend period, shall, for the purposes of
Section 5(b)(1) of this Division A-IX, be deemed to be made in respect of the
earliest dividend period with respect to which the Company is in default.



     X. The Class J Cumulative Preferred Shares. The Class J Shares shall have the following
express terms:




     Section 1. Series. The Class J Shares may be issued from time to time in one or more
series. All Class J Shares shall be of equal rank and shall be identical, except in



86









 






respect of the matters that may be fixed by the Board of Directors as hereinafter
provided, and each share of a series shall be identical with all other shares of such
series, except as to the dates from which dividends shall accrue and be cumulative. All
Class J Shares shall rank on a parity with the Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class K Shares and Noncumulative Shares and shall be identical to all Class
A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class K Shares and Noncumulative Shares
except (1) in respect of the matters that may be fixed by the Board of Directors as provided
in clauses (a) through (i), inclusive, of this Section 1 and (2) only dividends on
Cumulative Shares shall be cumulative as set forth herein. Subject to the provisions of
Sections 2 through 5, both inclusive, and Item XIII of this Division, which provisions shall
apply to all Class J Shares, the Board of Directors hereby is authorized to cause such
shares to be issued in one or more series and, with respect to each such series to determine
and fix prior to the issuance thereof (and thereafter, to the extent provided in clause (b)
of this Section), the following:




     (a) The designation of the series, which may be by distinguishing number,
letter or title;




     (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);




     (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




     (d) The date or dates from which dividends shall accrue and be cumulative and
the dates on which and the period or periods for which dividends, if declared,
shall be payable, including the means by which such dates and periods may be
established;




     (e) The redemption rights and price or prices, if any, for shares of the
series;




     (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;




     (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;




     (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and



87









 






     (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item X) on the issuance of shares of the same series or of any other class or
series.



               The Board of Directors is authorized to adopt from time to time amendments to the Amended and
Restated Articles of Incorporation, as amended, fixing, with respect to each such series, the
matters described in clauses (a) through (i), inclusive, of this Section and is authorized to take
such actions with respect thereto as may be required by law in order to effect such amendments.




Section 2. Dividends.




     (a) The holders of Class J Shares of each series, in preference to the holders
of Common Shares and of any other class of shares ranking junior to the Class J
Shares, shall be entitled to receive out of any funds legally available therefor,
and when and as declared by the Board of Directors, dividends in cash at the rate
or rates for such series fixed in accordance with the provisions of Section 1 above
and no more, payable on the dates fixed for such series. Such dividends shall
accrue and be cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class J Shares for any
dividend period unless at the same time (i) a like proportionate dividend for the
dividend periods terminating on the same or any earlier date, ratably in proportion
to the respective annual dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Class J Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date (but, with
respect to Noncumulative Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend rates fixed therefor,
shall have been paid upon or declared or set apart for all Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class K Shares and Noncumulative Shares
then issued and outstanding and entitled to receive such dividends.




     (b) So long as any Class J Shares shall be outstanding no dividend, except a
dividend payable in Common Shares or other shares ranking junior to the Class J
Shares, shall be paid or declared or any distribution be made, except as aforesaid,
in respect of the Common Shares or any other shares ranking junior to the Class J
Shares, nor shall any Common Shares or any other shares ranking junior to the Class
J Shares be purchased, retired or otherwise acquired by the Corporation, except out
of the proceeds of the sale of Common Shares or other shares of the Corporation
ranking junior to the Class J Shares received by the Corporation subsequent to the
date of first issuance of Class J Shares of any series, unless:



88









 






          (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;




          (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment therefor
set apart; and




          (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund provided for
shares of such series in accordance with the provisions of Section 1 of this Item X.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption retirement or other acquisition
of, Common Shares or any other shares ranking on a parity with or junior to the
Class J Shares shall be inapplicable to (i) any payments in lieu of issuance of
fractional shares thereof, whether upon any merger, conversion, stock dividend or
otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its rights pursuant to
Item XIV(d) of this Division A, Section 4(d) of Division B or any similar Section
hereafter contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock hereafter
created or authorized.




     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Class J Shares shall
be the amount that the total dividends paid or made available to the holders of the
Class J Shares for the year bears to the Total Dividends.




Section 3. Redemption.




     (a) Subject to the express terms of each series, the Corporation:




          (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Class J Shares at the time outstanding at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item X; and




          (2) Shall, from time to time, make such redemptions of each series of Class J
Shares as may be required to fulfill the requirements of any sinking fund provided
for shares of such series at the applicable sinking fund redemption price



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fixed in accordance with the provisions of Section 1 of this Item X; and shall
in each case pay all accrued and unpaid dividends to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Class J Shares to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days nor
more than 60 days prior to the date fixed for such redemption, or such other time
prior thereto as the Board of Directors shall fix for any series pursuant to
Section 1 of this Item X prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may deposit the
aggregate redemption price of Class J Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any bank or trust company
in Cleveland, Ohio, or New York, New York, having capital and surplus of not less
than $100,000,000 named in such notice and direct that there be paid to the
respective holders of the Class J Shares so to be redeemed amounts equal to the
redemption price of the Class J Shares so to be redeemed, together with such
accrued and unpaid dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of such notice in the mail
and the making of such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such shares; and from and
after the time such notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or claim against the
Corporation with respect to such shares, except only the right to receive such
money from such bank or trust company without interest or to exercise before the
redemption date any unexpired privileges of conversion. In the event less than all
of the outstanding Class J Shares are to be redeemed, the Corporation shall select
by lot the shares so to be redeemed in such manner as shall be prescribed by the
Board of Directors.




          (2) If the holders of Class J Shares which have been called for redemption
shall not within six years after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and to
such holders.




     (c) Any Class J Shares which are (1) redeemed by the Corporation pursuant to
the provisions of this Section, (2) purchased and delivered in satisfaction of any
sinking fund requirements provided for shares of such series, (3) converted in
accordance with the express terms thereof, or (4) otherwise acquired by the
Corporation shall resume the status of authorized but unissued Class J Shares
without serial designation.




     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated



90









 






Articles of Incorporation, as amended, with respect to any other class or
series of capital stock hereafter created or authorized, the Corporation may not
purchase or redeem (for sinking fund purposes or otherwise) less than all of the
Class J Shares then outstanding except in accordance with a stock purchase offer
made to all holders of record of Class J Shares, unless all dividends on all Class
J Shares then outstanding for all previous and current dividend periods shall have
been declared and paid or funds therefor set apart and all accrued sinking fund
obligations applicable thereto shall have been complied with.




Section 4. Liquidation.




     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of Class J
Shares of any series shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or distributed
among the holders of the Common Shares or any other shares ranking junior to the
Class J Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item X, plus an amount equal to all dividends
accrued and unpaid thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of the Corporation. In
the event the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all outstanding
Cumulative Shares and Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.




          (2) After payment to the holders of Class J Shares of the full preferential
amounts as aforesaid, the holders of Class J Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.




     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other Corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be
deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.




Section 5. Voting.




     (a) The holders of Class J Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Class J Shares at the time outstanding,
whether or not earned or declared, for a number of dividend payment periods,
whether consecutive or not, which in the aggregate contain at least 540 days, all
holders of such Class J Shares, voting separately as a class, together with all



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Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class K
Shares and Noncumulative Shares upon which like voting rights have been conferred
and are exercisable under the circumstances described in Subsection 5(c), shall be
entitled to elect, as herein provided, a total of two members of the Board of
Directors of the Corporation; provided, however, that the holders of such Class J
Shares shall not exercise such special class voting rights except at meetings of
such shareholders for the election of directors at which the holders of not less
than 50% of such Class J Shares are present in person or by proxy; and provided
further that the special class voting rights provided for in this paragraph when
the same shall have become vested shall remain so vested until all accrued and
unpaid dividends on such Class J Shares then outstanding shall have been paid or
declared and a sum sufficient for the payment thereof set aside for payment,
whereupon the holders of such Class J Shares shall be divested of their special
class voting rights in respect of subsequent elections of directors, subject to the
revesting of such special class voting rights in the event above specified in this
paragraph. All dividend payments made on the Class J Shares, at any time during
which the Corporation is in default in the payment of dividends on such Class J
Shares for any dividend period, shall be deemed to be made in respect of the
earliest dividend period with respect to which the Corporation is in default.




          (2) In the event of default entitling holders of Class J Shares to elect two
directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Class J Shares upon which such default in
the payment of dividends exists and notice thereof shall be given in the same manner
as that required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual meeting
of shareholders shall be called to be held within 90 days after the date of receipt
of the foregoing written request from the holders of Class J Shares. At any meeting
at which such holders of Class J Shares shall be entitled to elect directors,
holders of 50% of such Class J Shares, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders of a majority of such shares so present at any such meeting at which there shall be such a quorum shall be
sufficient to elect the members of the Board of Directors which such holders of
Class J Shares are entitled to elect as herein provided. Notwithstanding any
provision of these Amended and Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the Corporation, the two directors
who may be elected by such holders of Class J Shares pursuant to this Subsection
shall serve in addition to any other directors then in office or proposed to be
elected otherwise than pursuant to this Subsection. Nothing in this Subsection
shall prevent any change otherwise permitted in the total number of or
classifications of directors of the Corporation or require the resignation of any
director elected otherwise than pursuant to this Subsection. Notwithstanding any
classification of the other directors of the



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Corporation, the two directors elected by such holders of Class J Shares shall
be elected annually for terms expiring at the next succeeding annual meeting of
shareholders.





          (3) Upon any divesting of the special class voting rights of the holders of the
Class J Shares in respect of elections of directors as provided in this Subsection,
the terms of office of all directors then in office elected by such holders shall
terminate immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by such holders voting as a
class may elect a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred.




     (c) If at any time when the holders of Class J Shares are entitled to elect
directors pursuant to the foregoing provisions of this Section the holders of any
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class K Shares or
Noncumulative Shares are entitled to elect directors pursuant hereto by reason of
any default in the payment of dividends thereon, then the voting rights of the
Cumulative Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes proportional to the
aggregate liquidation preference of its outstanding shares). In such case, the
holders of Class J Shares and of all such other shares then entitled so to vote,
voting as a class, shall elect such directors. If the holders of any such other
shares have elected such directors prior to the happening of the default or event
permitting the holders of Class J Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be held with all such
other shares and the Class J Shares voting together as a single class for such
directors, resulting in the termination of the term of such previously elected
directors upon the election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the Class J
Shares at the time outstanding, voting separately as a class, given in person or by
proxy either in writing or at a meeting called for the purpose, shall be necessary
to effect either of the following:




          (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of Class J Shares which are set forth in these Amended and Restated Articles
of Incorporation, as amended; provided, however, neither the amendment of these
Amended and Restated Articles of Incorporation, as amended, so as to authorize,
create or change the authorized or outstanding number of Class J Shares or of any shares ranking on a parity with or junior to the Class J Shares nor the amendment of
the provisions of the Code of Regulations so



93









 






as to change the number or classification of directors of the Corporation shall
be deemed to affect adversely and materially preferences or voting or other rights
of the holders of Class J Shares; or




          (2) The authorization, creation or increase in the authorized number of any shares, or any security convertible into shares, in either case ranking prior to
such series of Class J Shares.




     (e) In the event, and only to the extent, that (1) Class J Shares are issued
in more than one series and (2) Ohio law permits the holders of a series of a class
of capital stock to vote separately as a class, the affirmative vote of the holders
of at least two-thirds of each series of Class J Shares at the time outstanding,
voting separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects adversely
and materially the preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated Articles of Incorporation,
as amended; provided, however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Class J Shares or of any shares ranking on a
parity with or junior to the Class J Shares nor the Amendment of the provisions of
the Code of Regulations so as to change the number or classification of directors
of the Corporation shall be deemed to affect adversely and materially the
preferences or voting or other rights of the holders of such series.




     Section 6. 9% Class J Cumulative Redeemable Preferred Shares. Of the 750,000
authorized Class J Shares, 450,000 shares are designated as a series entitled “9% Class J
Cumulative Redeemable Preferred Shares” (hereinafter called “9% Class J Preferred Shares”).
The 9% Class J Preferred Share shall have the express terms set forth in this Division as
being applicable to all Class J Preferred Shares as a class and, in addition, the following
express terms applicable to all 9% Class J Preferred Shares as a series of Class J Shares:




     (a) The annual dividend rate of the 9% Class J Preferred Shares shall be 9% of
the liquidation preference of $250.00 per share.




     (b) Dividends on the 9% Class J Preferred Shares shall be payable, if
declared, quarterly on or about the fifteenth day of January, April, July and
October. The dividends payable for each full quarterly dividend period on each 9%
Class J Preferred Share shall be $5.625. Dividends for any period shorter or
longer than a full dividend period on the 9% Class J Preferred Shares, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months. The
aggregate dividend payable quarterly to each holder of 9% Class J Preferred Shares
shall be rounded to the nearest one-hundredth of one cent with $.00005



94









 






being rounded upward. Each dividend shall be payable to the holders of record
on such record date, no less than 10 nor more than 30 days preceding the payment
date thereof, as shall be fixed from time to time by the Corporation’s Board of
Directors.




     (c) Dividends on 9% Class J Preferred Shares shall be cumulative as follows:




          (1) With respect to shares included in the initial issue of 9% Class J
Preferred Shares and shares issued any time thereafter up to and including the
record date for the payment of the first dividend on the initial issue of 9% Class J
Preferred Shares, dividends shall be cumulative from the date of the initial issue
of 9% Class J Preferred Shares; and




          (2) With respect to shares issued any time after the aforesaid record date,
dividends shall be cumulative from the dividend payment date next preceding the date
of issue of such shares, except that if such shares are issued during the period
commencing the day after the record date for the payment of a dividend on 9% Class J
Preferred Shares and ending on the payment date of that dividend, dividends with
respect to such shares shall be cumulative from that dividend payment date.




     (d) The Corporation may, at any time or from time to time on, at its option
upon not less than thirty (30) nor more than sixty (60) days’ written notice, may
redeem all or any part of the 9% Class J Preferred Shares at a redemption price of
$250.00 per share plus, in each case, an amount equal to all dividends accrued and
unpaid thereon to the redemption date, without interest. The redemption price
(other than the portion thereof consisting of accrued and unpaid dividends) is
payable solely out of the sale proceeds of other capital shares of the Corporation,
which may include any equity securities (including common shares and preferred
shares), shares, interests, participation or other ownership interests (however
designated) and any rights (other than debt securities convertible into or
exchangeable for equity securities), or options to purchase any of the foregoing.




     (e) The amount payable per 9% Class J Preferred Share in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs of
the Corporation shall be $250.00, plus an amount equal to all dividends accrued and
unpaid thereon to the date of payment.




     (f) The affirmative vote of the holders of at least two-thirds of the Class J
Preferred Shares at the time outstanding, voting separately as a class, given in
person or by proxy either in writing or at a meeting called for the purpose, shall
be necessary to effect the authorization, creation, increase in the authorized
number of or issuance of any shares, or any security convertible into or
exchangeable for shares, in any such case ranking prior to such series of Class J



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     Preferred Shares in dividends, distributions or rights upon liquidation,
dissolution or winding up.




     XI. The Class K Cumulative Preferred Shares. The Class K Shares shall have the following
express terms:




     Section 1. Series. The Class K Shares may be issued from time to time in one or more
series. All Class K Shares shall be of equal rank and shall be identical, except in respect
of the matters that may be fixed by the Board of Directors as hereinafter provided, and each
share of a series shall be identical with all other shares of such series, except as to the
dates from which dividends shall accrue and be cumulative. All Class K Shares shall rank on
a parity with the Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E
Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares and
Noncumulative Shares and shall be identical to all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares and Noncumulative Shares except (1) in respect of the matters
that may be fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on Cumulative Shares shall be cumulative
as set forth herein. Subject to the provisions of Sections 2 through 5, both inclusive, and
Item XIII of this Division, which provisions shall apply to all Class K Shares, the Board of
Directors hereby is authorized to cause such shares to be issued in one or more series and,
with respect to each such series to determine and fix prior to the issuance thereof (and
thereafter, to the extent provided in clause (b) of this Section), the following:




          (a) The designation of the series, which may be by distinguishing number,
letter or title;




          (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);




          (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




          (d) The date or dates from which dividends shall accrue and be cumulative and
the dates on which and the period or periods for which dividends, if declared,
shall be payable, including the means by which such dates and periods may be
established;




          (e) The redemption rights and price or prices, if any, for shares of the
series;




          (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;



96









 






          (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;




          (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and




          (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item XI) on the issuance of shares of the same series or of any other class or
series.



               The Board of Directors is authorized to adopt from time to time amendments to the Amended and
Restated Articles of Incorporation, as amended, fixing, with respect to each such series, the
matters described in clauses (a) through (i), inclusive, of this Section and is authorized to take
such actions with respect thereto as may be required by law in order to effect such amendments.




Section 2. Dividends.




     (a) The holders of Class K Shares of each series, in preference to the holders
of Common Shares and of any other class of shares ranking junior to the Class K
Shares, shall be entitled to receive out of any funds legally available therefor,
and when and as declared by the Board of Directors, dividends in cash at the rate
or rates for such series fixed in accordance with the provisions of Section 1 above
and no more, payable on the dates fixed for such series. Such dividends shall
accrue and be cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. No dividends shall be
paid upon or declared or set apart for any series of the Class K Shares for any
dividend period unless at the same time (i) a like proportionate dividend for the
dividend periods terminating on the same or any earlier date, ratably in proportion
to the respective annual dividend rates fixed therefor, shall have been paid upon
or declared or set apart for all Class K Shares of all series then issued and
outstanding and entitled to receive such dividend and (ii) the dividends payable
for the dividend periods terminating on the same or any earlier date (but, with
respect to Noncumulative Shares, only with respect to the then current dividend
period), ratably in proportion to the respective dividend rates fixed therefor,
shall have been paid upon or declared or set apart for all Class A Shares, Class B
Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G
Shares, Class H Shares, Class I Shares, Class J Shares and Noncumulative Shares
then issued and outstanding and entitled to receive such dividends.




     (b) So long as any Class K Shares shall be outstanding no dividend, except a
dividend payable in Common Shares or other shares ranking junior to the Class K
Shares, shall be paid or declared or any distribution be made, except



97









 






as aforesaid, in respect of the Common Shares or any other shares ranking
junior to the Class K Shares, nor shall any Common Shares or any other shares
ranking junior to the Class K Shares be purchased, retired or otherwise acquired by
the Corporation, except out of the proceeds of the sale of Common Shares or other
shares of the Corporation ranking junior to the Class K Shares received by the
Corporation subsequent to the date of first issuance of Class K Shares of any
series, unless:




          (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;




          (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment therefor
set apart; and




          (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund provided for
shares of such series in accordance with the provisions of Section 1 of this Item
XI.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption retirement or other acquisition
of, Common Shares or any other shares ranking on a parity with or junior to the
Class K Shares shall be inapplicable to (i) any payments in lieu of issuance of
fractional shares thereof, whether upon any merger, conversion, stock dividend or
otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares into
Common Shares, or (iii) the exercise by the Corporation of its rights pursuant to
Item XIV(d) of this Division A, Section 4(d) of Division B or any similar Section
hereafter contained in these Amended and Restated Articles of Incorporation, as
amended, with respect to any other class or series of capital stock hereafter
created or authorized.




     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Class K Shares shall
be the amount that the total dividends paid or made available to the holders of the
Class K Shares for the year bears to the Total Dividends.




Section 3. Redemption.




     (a) Subject to the express terms of each series, the Corporation:



98









 






          (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Class K Shares at the time outstanding at
the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item XI; and




          (2) Shall, from time to time, make such redemptions of each series of Class K
Shares as may be required to fulfill the requirements of any sinking fund provided
for shares of such series at the applicable sinking fund redemption price fixed in
accordance with the provisions of Section 1 of this Item XI; and shall in each case
pay all accrued and unpaid dividends to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Class K Shares to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days nor
more than 60 days prior to the date fixed for such redemption, or such other time
prior thereto as the Board of Directors shall fix for any series pursuant to
Section 1 of this Item XI prior to the issuance thereof. At any time after notice
as provided above has been deposited in the mail, the Corporation may deposit the
aggregate redemption price of Class K Shares to be redeemed, together with accrued
and unpaid dividends thereon to the redemption date, with any bank or trust company
in Cleveland, Ohio, or New York, New York, having capital and surplus of not less
than $100,000,000 named in such notice and direct that there be paid to the
respective holders of the Class K Shares so to be redeemed amounts equal to the
redemption price of the Class K Shares so to be redeemed, together with such
accrued and unpaid dividends thereon, on surrender of the share certificate or
certificates held by such holders; and upon the deposit of such notice in the mail
and the making of such deposit of money with such bank or trust company, such
holders shall cease to be shareholders with respect to such shares; and from and
after the time such notice shall have been so deposited and such deposit of money
shall have been so made, such holders shall have no rights or claim against the
Corporation with respect to such shares, except only the right to receive such
money from such bank or trust company without interest or to exercise before the
redemption date any unexpired privileges of conversion. In the event less than all
of the outstanding Class K Shares are to be redeemed, the Corporation shall select
by lot the shares so to be redeemed in such manner as shall be prescribed by the
Board of Directors.




          (2) If the holders of Class K Shares which have been called for redemption
shall not within six years after such deposit claim the amount deposited for the
redemption thereof, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank or trust company and
the Corporation shall be relieved of all responsibility in respect thereof and to
such holders.




     (c) Any Class K Shares which are (1) redeemed by the Corporation pursuant to
the provisions of this Section, (2) purchased and delivered in



99









 






satisfaction of any sinking fund requirements provided for shares of such
series, (3) converted in accordance with the express terms thereof, or (4)
otherwise acquired by the Corporation shall resume the status of authorized but
unissued Class K Shares without serial designation.




     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated Articles
of Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not purchase or redeem
(for sinking fund purposes or otherwise) less than all of the Class K Shares then
outstanding except in accordance with a stock purchase offer made to all holders of
record of Class K Shares, unless all dividends on all Class K Shares then
outstanding for all previous and current dividend periods shall have been declared
and paid or funds therefor set apart and all accrued sinking fund obligations
applicable thereto shall have been complied with.




Section 4. Liquidation.




     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of Class K
Shares of any series shall be entitled to receive in full out of the assets of the
Corporation, including its capital, before any amount shall be paid or distributed
among the holders of the Common Shares or any other shares ranking junior to the
Class K Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Item XI, plus an amount equal to all dividends
accrued and unpaid thereon to the date of payment of the amount due pursuant to
such liquidation, dissolution or winding up of the affairs of the Corporation. In
the event the net assets of the Corporation legally available therefor are
insufficient to permit the payment upon all outstanding Cumulative Shares and
Noncumulative Shares of the full preferential amount to which they are respectively
entitled, then such net assets shall be distributed ratably upon all outstanding
Cumulative Shares and Noncumulative Shares in proportion to the full preferential
amount to which each such share is entitled.




          (2) After payment to the holders of Class K Shares of the full preferential
amounts as aforesaid, the holders of Class K Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.




     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other Corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be
deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.






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Section 5. Voting.




     (a) The holders of Class K Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall be in default in the
payment of dividends on any series of Class K Shares at the time outstanding,
whether or not earned or declared, for a number of dividend payment periods,
whether consecutive or not, which in the aggregate contain at least 540 days, all
holders of such Class K Shares, voting separately as a class, together with all
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares and
Noncumulative Shares upon which like voting rights have been conferred and are
exercisable under the circumstances described in Subsection 5(c), shall be entitled
to elect, as herein provided, a total of two members of the Board of Directors of
the Corporation; provided, however, that the holders of such Class K Shares shall
not exercise such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not less than
50% of such Class K Shares are present in person or by proxy; and provided further
that the special class voting rights provided for in this paragraph when the same
shall have become vested shall remain so vested until all accrued and unpaid
dividends on such Class K Shares then outstanding shall have been paid or declared
and a sum sufficient for the payment thereof set aside for payment, whereupon the
holders of such Class K Shares shall be divested of their special class voting
rights in respect of subsequent elections of directors, subject to the revesting of
such special class voting rights in the event above specified in this paragraph.
All dividend payments made on the Class K Shares, at any time during which the
Corporation is in default in the payment of dividends on such Class K Shares for
any dividend period, shall be deemed to be made in respect of the earliest dividend
period with respect to which the Corporation is in default.




          (2) In the event of default entitling holders of Class K Shares to elect two
directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Class K Shares upon which such default in
the payment of dividends exists and notice thereof shall be given in the same manner
as that required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual meeting
of shareholders shall be called to be held within 90 days after the date of receipt
of the foregoing written request from the holders of Class K Shares. At any meeting
at which such holders of Class K Shares shall be entitled to elect directors,
holders of 50% of such Class K Shares, present in person or by proxy, shall be
sufficient to constitute a quorum, and the vote of the holders of a majority of such shares so present at any such meeting at which there shall be such a quorum shall be
sufficient to elect the members of the Board of Directors which such holders of
Class K Shares are entitled to elect as herein provided. Notwithstanding any
provision of these Amended and Restated Articles of Incorporation, as amended, or
the Code of Regulations of the Corporation or any



101









 







action taken by the holders of any class of shares fixing the number of
directors of the Corporation, the two directors who may be elected by such holders
of Class K Shares pursuant to this Subsection shall serve in addition to any other
directors then in office or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any change otherwise permitted
in the total number of or classifications of directors of the Corporation or require
the resignation of any director elected otherwise than pursuant to this Subsection.
Notwithstanding any classification of the other directors of the Corporation, the
two directors elected by such holders of Class K Shares shall be elected annually
for terms expiring at the next succeeding annual meeting of shareholders.




          (3) Upon any divesting of the special class voting rights of the holders of the
Class K Shares in respect of elections of directors as provided in this Subsection,
the terms of office of all directors then in office elected by such holders shall
terminate immediately thereupon. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death, resignation, removal
from office or otherwise, the remaining director elected by such holders voting as a
class may elect a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred.




     (c) If at any time when the holders of Class K Shares are entitled to elect
directors pursuant to the foregoing provisions of this Section the holders of any
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares or
Noncumulative Shares are entitled to elect directors pursuant hereto by reason of
any default in the payment of dividends thereon, then the voting rights of the
Cumulative Shares and the Noncumulative Shares then entitled to vote shall be
combined (with each class of shares having a number of votes proportional to the
aggregate liquidation preference of its outstanding shares). In such case, the
holders of Class K Shares and of all such other shares then entitled so to vote,
voting as a class, shall elect such directors. If the holders of any such other
shares have elected such directors prior to the happening of the default or event
permitting the holders of Class K Shares to elect directors, or prior to a written
request for the holding of a special meeting being received by the Secretary of the
Corporation as required above, then a new election shall be held with all such
other shares and the Class K Shares voting together as a single class for such
directors, resulting in the termination of the term of such previously elected
directors upon the election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the Class K
Shares at the time outstanding, voting separately as a class, given in person or by
proxy either in writing or at a meeting called for the purpose, shall be necessary
to effect either of the following:




          (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated



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Articles of Incorporation, as amended, or of the Code of Regulations of the
Corporation which affects adversely and materially the preferences or voting or
other rights of the holders of Class K Shares which are set forth in these Amended
and Restated Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as amended, so as
to authorize, create or change the authorized or outstanding number of Class K
Shares or of any shares ranking on a parity with or junior to the Class K Shares nor
the amendment of the provisions of the Code of Regulations so as to change the
number or classification of directors of the Corporation shall be deemed to affect
adversely and materially preferences or voting or other rights of the holders of
Class K Shares; or





          (2) The authorization, creation or
increase in the authorized number of any shares, or any security convertible into shares, in either case ranking prior to
such series of Class K Shares.




     (e) In the event, and only to the extent, that (1) Class K Shares are issued
in more than one series and (2) Ohio law permits the holders of a series of a class
of capital stock to vote separately as a class, the affirmative vote of the holders
of at least two-thirds of each series of Class K Shares at the time outstanding,
voting separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of these Amended and Restated Articles of Incorporation, as
amended, or of the Code of Regulations of the Corporation which affects adversely
and materially the preferences or voting or other rights of the holders of such
series which are set forth in these Amended and Restated Articles of Incorporation,
as amended; provided, however, neither the amendment of these Amended and Restated
Articles of Incorporation, as amended, so as to authorize, create or change the
authorized or outstanding number of Class K Shares or of any shares ranking on a
parity with or junior to the Class K Shares nor the Amendment of the provisions of
the Code of Regulations so as to change the number or classification of directors
of the Corporation shall be deemed to affect adversely and materially the
preferences or voting or other rights of the holders of such series.




     Section 6. 87/8% Class K Cumulative Redeemable Preferred Shares.
Of the 750,000 authorized Class K Shares, 350,000 shares are designated as a series entitled
“87/8% Class K Cumulative Redeemable Preferred Shares” (hereinafter
called “87/8% Class K Preferred Shares”). The
87/8% Class K Preferred Shares shall have the express terms set forth
in this Division as being applicable to all Class K Preferred Shares as a class and, in
addition, the following express terms applicable to all 87/8% Class K
Preferred Shares as a series of Class K Shares:




     (a) The annual dividend rate of the 87/8% Class K
Preferred Shares shall be 87/8% of the liquidation preference
of $250.00 per share.



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     (b) Dividends on the 87/8% Class K Preferred Shares
shall be payable, if declared, quarterly on or about the fifteenth day of January,
April, July and October. The dividends payable for each full quarterly dividend
period on each 87/8% Class K Preferred Share shall be
$5.546875. Dividends for any period shorter or longer than a full dividend period
on the 87/8% Class K Preferred Shares, shall be computed on
the basis of a 360-day year consisting of twelve 30-day months. The aggregate
dividend payable quarterly to each holder of 87/8% Class K
Preferred Shares shall be rounded to the nearest one-hundredth of one cent with
$.00005 being rounded upward. Each dividend shall be payable to the holders of
record on such record date, no less than 10 nor more than 30 days preceding the
payment date thereof, as shall be fixed from time to time by the Corporation’s
Board of Directors.




     (c) Dividends on 87/8% Class K Preferred Shares shall be
cumulative as follows:




          (1) With respect to shares included in the initial issue of
87/8% Class K Preferred Shares and shares issued any time
thereafter up to and including the record date for the payment of the first dividend
on the initial issue of 87/8% Class K Preferred Shares,
dividends shall be cumulative from the date of the initial issue of
87/8% Class K Preferred Shares; and




          (2) With respect to shares issued any time after the aforesaid record date,
dividends shall be cumulative from the dividend payment date next preceding the date
of issue of such shares, except that if such shares are issued during the period
commencing the day after the record date for the payment of a dividend on
87/8% Class K Preferred Shares and ending on the payment date
of that dividend, dividends with respect to such shares shall be cumulative from
that dividend payment date.




     (d) The Corporation may, at any time or from time to time on, at its option
upon not less than thirty (30) nor more than sixty (60) days’ written notice,
redeem all or any part of the 87/8% Class K Preferred Shares
at a redemption price of $250.00 per share plus, in each case, an amount equal to
all dividends accrued and unpaid thereon to the redemption date, without interest.
The redemption price (other than the portion thereof consisting of accrued and
unpaid dividends) is payable solely out of the sale proceeds of other capital
shares of the Corporation, which may include any equity securities (including
common shares and preferred shares), shares, interests, participation or other
ownership interests (however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities), or options to purchase any
of the foregoing.




     (e) The amount payable per 87/8% Class K Preferred Share
in the event of any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Corporation shall be $250.00, plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment.



104









 






     (f) The affirmative vote of the holders of at least two-thirds of the Class K
Preferred Shares at the time outstanding, voting separately as a class, given in
person or by proxy either in writing or at a meeting called for the purpose, shall
be necessary to effect the authorization, creation, increase in the authorized
number of or issuance of any shares, or any security convertible into or
exchangeable for shares, in any such case ranking prior to such series of Class K
Preferred Shares in dividends, distributions or rights upon liquidation,
dissolution or winding up.



     XII. The Noncumulative Preferred Shares. The Noncumulative Preferred Shares shall have the
following express terms:




     Section 1. Series. The Noncumulative Shares may be issued from time to time in one or
more series. All Noncumulative Shares shall be of equal rank and shall be identical, except
in respect of the matters that may be fixed by the Board of Directors as hereinafter
provided, and each share of a series shall be identical with all other shares of such
series, except as to the dates on which and the periods for which dividends may be payable.
All Noncumulative Shares shall rank on a parity with the Cumulative Shares, and shall be
identical to all Cumulative Shares, except (1) in respect of the matters that may be fixed
by the Board of Directors as provided in clauses (a) through (i), inclusive, of this Section
1 and (2) only dividends on the Noncumulative Shares are noncumulative as set forth herein.
Subject to the provisions of Sections 2 through 5, inclusive, and Item XIII of this
Division, which provisions shall apply to all Noncumulative Shares, the Board of Directors
hereby is authorized to cause such shares to be issued in one or more series, and with
respect to each such series, to determine and fix prior to the issuance thereof (and
thereafter, to the extent provided in clause (b) of this Section) the following:




     (a) The designation of the series, which may be by distinguishing number,
letter or title;




     (b) The authorized number of shares of the series, which number the Board of
Directors may (except where otherwise provided in the creation of the series)
increase or decrease from time to time before or after the issuance thereof (but
not below the number of shares thereof then outstanding);




     (c) The dividend rate or rates of the series, including the means by which
such rates may be established;




     (d) The dates on which and the period or periods for which dividends, if
declared, shall be payable, including the means by which such dates and periods may
be established;




     (e) The redemption rights and price or prices, if any, for shares of the
series;




     (f) The terms and amount of the sinking fund, if any, for the purchase or
redemption of shares of the series;



105









 






     (g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;




     (h) Whether the shares of the series shall be convertible into Common Shares
or shares of any other class and, if so, the conversion rate or rates or price or
prices, any adjustments thereof and all other terms and conditions upon which such
conversion may be made; and




     (i) Restrictions (in addition to those set forth in Subsection 5(d) or 5(e) of
this Item XII) on the issuance of shares of the same series or of any other class
or series.



          The Board of Directors is authorized to adopt from time to time amendments to the Amended and
Restated Articles of Incorporation, as amended, fixing, with respect to each such series, the
matters described in clauses (a) through (i), both inclusive, of this Section and is authorized to
take such actions with respect thereto as may be required by law in order to effect such
amendments.




     Section 2. Dividends.




     (a) The holders of Noncumulative Shares of each series, in preference to the
holders of Common Shares and of any other class of shares ranking junior to the
Noncumulative Shares, shall be entitled to receive out of any funds legally
available therefor, if, when and as declared by the Board of Directors, dividends
in cash at the rate or rates for such series fixed in accordance with the
provisions of Section 1 above and no more, payable on the dates fixed for such
series. Such dividends shall accrue, in the case of shares of each particular
series, from and after the date or dates fixed with respect to such series;
provided, however, that if the Board of Directors fails to declare a dividend
payable on a dividend payment date on any Noncumulative Shares, the holders of the
Noncumulative Shares shall have no right to receive a dividend in respect of the
dividend period ending on such dividend payment date, and the Corporation shall
have no obligation to pay the dividend accrued for such period, whether or not
dividends on such Noncumulative Shares are declared payable on any future dividend
payment date. No dividends shall be paid upon or declared or set apart for any
series of the Noncumulative Shares for any dividend period unless at the same time
(i) a like proportionate dividend for the then current dividend period, ratably in
proportion to the respective annual dividend rates fixed therefor, shall have been
paid upon or declared or set apart for all Noncumulative Shares of all series then
issued and outstanding and entitled to receive such dividend and (ii) the dividends
payable for the dividend periods terminating on the same or any earlier date,
ratably in proportion to the respective dividend rates fixed therefor, shall have
been paid upon or declared or set apart for all Class A Shares, Class B Shares,
Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class I Shares, Class J Shares and Class K Shares then issued and
outstanding and entitled to receive such dividends.



106









 






     (b) So long as any Noncumulative Shares shall be outstanding no dividend,
except a dividend payable in Common Shares or other shares ranking junior to the
Noncumulative Shares, shall be paid or declared or any distribution be made, except
as aforesaid, in respect of the Common Shares or any other shares ranking junior to
the Noncumulative Shares, nor shall any Common Shares or any other shares ranking
junior to the Noncumulative Shares be purchased, retired or otherwise acquired by
the Corporation, except out of the proceeds of the sale of Common Shares or other
shares of the Corporation ranking junior to the Noncumulative Shares received by
the Corporation subsequent to the date of first issuance of Noncumulative Shares of
any series, unless:




          (1) All accrued and unpaid dividends on Cumulative Shares, including the full
dividends for all current dividend periods, shall have been declared and paid or a
sum sufficient for payment thereof set apart;




          (2) All unpaid dividends on Noncumulative Shares for the then current dividend
period shall have been declared and paid or a sum sufficient for payment therefor
set apart; and




          (3) There shall be no arrearages with respect to the redemption of Cumulative
Shares or Noncumulative Shares of any series from any sinking fund provided for
shares of such series in accordance with the provisions of Section 1 of this Item
XII.




     (c) The foregoing restrictions on the payment of dividends or other
distributions on, or on the purchase, redemption retirement or other acquisition
of, Common Shares or any other shares ranking on a parity with or junior to the
Noncumulative Shares shall be inapplicable to (i) any payments in lieu of issuance
of fractional shares thereof, whether upon any merger, conversion, stock dividend
or otherwise, (ii) the conversion of Cumulative Shares or Noncumulative Shares into
Common Shares or (iii) the exercise by the Corporation of its rights pursuant to
Item XIV(d) of this Division A, Section 4(d) of Division B or any similar Section
hereafter contained in these Amended and Restated Articles of Incorporation with
respect to any other class or series of capital stock hereafter created or
authorized.




     (d) If, for any taxable year, the Corporation elects to designate as “capital
gain dividends” (as defined in Section 857 of the Code) any portion (the “Capital
Gains Amount”) of the dividends paid or made available for the year to holders of
all classes of stock (the “Total Dividends”), then, to the extent permissible under
the Code and to the extent it does not cause any dividends to fail to qualify for
the dividends paid deduction under Section 561 of the Code, the portion of the
Capital Gains Amount that shall be allocable to holders of the Noncumulative Shares
shall be the amount that the total dividends paid or made available to the holders
of the Noncumulative Shares for the year bears to the Total Dividends.



107









 






     Section 3. Redemption.




     (a) Subject to the express terms of each series, the Corporation:




          (1) May, from time to time at the option of the Board of Directors, redeem all
or any part of any redeemable series of Noncumulative Shares at the time outstanding
at the applicable redemption price for such series fixed in accordance with the
provisions of Section 1 of this Item XII; and




          (2) Shall, from time to time, make such redemptions of each series of
Noncumulative Shares as may be required to fulfill the requirements of any sinking
fund provided for shares of such series at the applicable sinking fund redemption
price fixed in accordance with the provisions of Section 1 of this Item XII; and
shall, in each case, pay all unpaid dividends for the then current dividend period
to the redemption date.




     (b) (1) Notice of every such redemption shall be mailed, postage prepaid,
to the holders of record of the Noncumulative Shares to be redeemed at their
respective addresses then appearing on the books of the Corporation, not less than
30 days nor more than 60 days prior to the date fixed for such redemption, or such
other time prior thereto as the Board of Directors shall fix for any series
pursuant to Section 1 of this Item XII prior to the issuance thereof. At any time
after notice as provided above has been deposited in the mail, the Corporation may
deposit the aggregate redemption price of Noncumulative Shares to be redeemed,
together with accrued and unpaid dividends thereon for the then current dividend
period to the redemption date, with any bank or trust company in Cleveland, Ohio,
or New York, New York, having capital and surplus of not less than $100,000,000
named in such notice and direct that there be paid to the respective holders of the
Noncumulative Shares so to be redeemed amounts equal to the redemption price of the
Noncumulative Shares so to be redeemed together with such accrued and unpaid
dividends thereon for the then current dividend period, on surrender of the share
certificate or certificates held by such holders; and upon the deposit of such
notice in the mail and the making of such deposit of money with such bank or trust
company, such holders shall cease to be shareholders with respect to such shares;
and from and after the time such notice shall have been so deposited and such
deposit of money shall have been so made, such holders shall have no rights or
claim against the Corporation with respect to such shares, except only the right to
receive such money from such bank or trust company without interest or to exercise
before the redemption date any unexpired privileges of conversion. In the event
less than all of the outstanding Noncumulative Shares are to be redeemed, the
Corporation shall select by lot the shares so to be redeemed in such manner as
shall be prescribed by the Board of Directors.




          (2) If the holders of Noncumulative Shares which have been called for
redemption shall not within six years after such deposit claim the amount deposited
for the redemption thereof, any such bank or trust company shall, upon



108









 







demand, pay over to the Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be relieved of all responsibility in
respect thereof and to such holders.




     (c) Any Noncumulative Shares which are (1) redeemed by the Corporation
pursuant to the provisions of this Section, (2) purchased and delivered in
satisfaction of any sinking fund requirements provided for shares of such series,
(3) converted in accordance with the express terms thereof, or (4) otherwise
acquired by the Corporation shall resume the status of authorized but unissued
Noncumulative Shares without serial designation.




     (d) Except in connection with the exercise of the Corporation’s rights
pursuant to Section (d) of Item XIV of this Division A, Section 4(d) of Division B
or any similar Section hereafter contained in these Amended and Restated Articles
of Incorporation, as amended, with respect to any other class or series of capital
stock hereafter created or authorized, the Corporation may not purchase or redeem
(for sinking fund purposes or otherwise) of less than all of the Noncumulative
Shares then outstanding except in accordance with a stock purchase offer made to
all holders of record of Noncumulative Shares, unless all dividends on all
Noncumulative Shares then outstanding for the then current dividend period shall
have been declared and paid or funds therefor set apart and all accrued sinking
fund obligations applicable thereto shall have been complied with.




     Section 4. Liquidation.




     (a) (1) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, the holders of
Noncumulative Shares of any series shall be entitled to receive in full out of the
assets of the Corporation, including its capital, before any amount shall be paid
or distributed among the holders of the Common Shares or any other shares ranking
junior to the Noncumulative Shares, the amounts fixed with respect to shares of
such series in accordance with Section 1 of this Item XII, plus an amount equal to
all dividends accrued and unpaid thereon for the then current dividend period to
the date of payment of the amount due pursuant to such liquidation, dissolution or
winding up of the affairs of the Corporation. In the event the net assets of the
Corporation legally available therefor are insufficient to permit the payment upon
all outstanding Cumulative Shares and Noncumulative Shares of the full preferential
amount to which they are respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Noncumulative Shares in proportion to the
full preferential amount to which each such share is entitled.




          (2) After payment to the holders of Noncumulative Shares of the full
preferential amounts as aforesaid, the holders of Noncumulative Shares, as such,
shall have no right or claim to any of the remaining assets of the Corporation.



109









 






     (b) The merger or consolidation of the Corporation into or with any other
Corporation, the merger of any other Corporation into it, or the sale, lease or
conveyance of all or substantially all the assets of the Corporation shall not be
deemed to be a dissolution, liquidation or winding up for the purposes of this
Section.




     Section 5. Voting.




     (a) The holders of Noncumulative Shares shall have no voting rights, except as
provided in this Section or required by law.




     (b) (1) If, and so often as, the Corporation shall not have fully paid, or
shall not have declared and set aside a sum sufficient for the payment of,
dividends on any series of Noncumulative Shares at the time outstanding, for a
number of dividend payment periods, whether consecutive or not, which in the
aggregate contain at least 540 days, the holders of such Noncumulative Shares,
voting separately as a class, together with all Cumulative Shares upon which like
voting rights have been conferred and are exercisable, shall be entitled to elect,
as herein provided, two members of the Board of Directors of the Corporation;
provided, however, that the holders of such Noncumulative Shares shall not exercise
such special class voting rights except at meetings of such shareholders for the
election of directors at which the holders of not less than 50% of such
Noncumulative Shares are present in person or by proxy; and provided further, that
the special class voting rights provided for in this paragraph when the same shall
have become vested shall remain so vested until the Corporation shall have fully
paid, or shall have set aside a sum sufficient for the payment of, dividends on
such Noncumulative Shares then outstanding for a number of consecutive dividend
payment periods which in the aggregate contain at least 360 days, whereupon the
holders of such Noncumulative Shares shall be divested of their special class
voting rights in respect of subsequent elections of directors, subject to the
revesting of such special class voting rights in the event above specified in this
paragraph.




          (2) In the event of default entitling holders of Noncumulative Shares to elect
two directors as specified in paragraph (1) of this Subsection, a special meeting of
such holders for the purpose of electing such directors shall be called by the
Secretary of the Corporation upon written request of, or may be called by, the
holders of record of at least 10% of the Noncumulative Shares upon which such
default in the payment of dividends exists and notice thereof shall be given in the
same manner as that required for the annual meeting of shareholders; provided,
however, that the Corporation shall not be required to call such special meeting if
the annual meeting of shareholders shall be called to be held within 90 days after
the date of receipt of the foregoing written request from the holders of
Noncumulative Shares. At any meeting at which such holders of Noncumulative Shares
shall be entitled to elect directors, holders of 50% of such Noncumulative Shares,
present in person or by proxy, shall be sufficient to constitute a quorum, and the
vote of the holders of a majority of such shares so present at any such



110









 







meeting at which there shall be such a quorum shall be sufficient to elect the
members of the Board of Directors which such holders of Noncumulative Shares are
entitled to elect as herein provided. Notwithstanding any provision of these
Amended and Restated Articles of Incorporation, as amended, or the Code of
Regulations of the Corporation or any action taken by the holders of any class of shares fixing the number of directors of the Corporation, the two directors who may
be elected by such holders of Noncumulative Shares pursuant to this Subsection shall
serve in addition to any other directors then in office or proposed to be elected
otherwise than pursuant to this Subsection. Nothing in this Subsection shall
prevent any change otherwise permitted in the total number of or classifications of
directors of the Corporation nor require the resignation of any director elected
otherwise than pursuant to this Subsection. Notwithstanding any classification of
the other directors of the Corporation, the two directors elected by such holders of
Noncumulative Shares shall be elected annually for terms expiring at the next
succeeding annual meeting of shareholders.




          (3) Upon any divesting of the special class voting rights of the holders of the
Noncumulative Shares in respect of elections of directors as provided in this
Subsection, the terms of office of all directors then in office elected by such
holders shall terminate immediately thereupon. If the office of any director
elected by such holders voting as a class becomes vacant by reason of death,
resignation, removal from office or otherwise, the remaining director elected by
such holders voting as a class may elect a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.




     (c) If at any time when the holders of Noncumulative Shares are entitled to
elect directors pursuant to the foregoing provisions of this Section the holders of
any Cumulative Shares are entitled to elect directors pursuant hereto by reason of
any default in the payment of dividends thereon, then the voting rights of the
Cumulative Shares and Noncumulative Shares then entitled to vote shall be combined
(with class of shares having a number of votes proportional to the aggregate
liquidation preference of its outstanding shares). In such case, the holders of
Noncumulative Shares and of all such other shares then entitled so to vote, voting
as a class, shall elect such directors. If the holders of any such other shares
have elected such directors prior to the happening of the default or event
permitting the holders of Noncumulative Shares to elect directors, or prior to a
written request for the holding of a special meeting being received by the
Secretary of the Corporation as required above, then a new election shall be held
with all such other shares and the Noncumulative Shares voting together as a single
class for such directors, resulting in the termination of the term of such
previously elected directors upon the election of such new directors.




     (d) The affirmative vote of the holders of at least two-thirds of the
Noncumulative Shares at the time outstanding, voting separately as a class, given
in person or by proxy either in writing or at a meeting called for the purpose,
shall be necessary to effect either of the following:



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          (1) Any amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Amended and Restated Articles of
Incorporation, as amended, or of the Code of Regulations of the Corporation which
affects adversely and materially the preferences or voting or other rights of the
holders of Noncumulative Shares which are set forth in these Amended and Restated
Articles of Incorporation, as amended; provided, however, neither the amendment of
these Amended and Restated Articles of Incorporation, as amended, so as to
authorize, create or change the authorized or outstanding number of Noncumulative
Shares or of any shares ranking on a parity with or junior to the Noncumulative
Shares nor the amendment of the provisions of the Code of Regulations so as to
change the number or classification of directors of the Corporation shall be deemed
to affect adversely and materially preferences or voting or other rights of the
holders of Noncumulative Shares; or




          (2) The authorization, creation or increase in the authorized number of any
shares, or any security convertible into shares, in either case ranking prior to
such Noncumulative Shares.




     (e) In the event, and only to the extent, that (1) Noncumulative Shares are
issued in more than one series and (2) Ohio law permits the holders of a series of
a class of capital stock to vote separately as a class, the affirmative vote of the
holders of at least two-thirds of each series of the Noncumulative Shares at the
time outstanding, voting separately as a class, given in person or by proxy either
in writing or at a meeting called for the purpose of voting on such matters, shall
be required for any amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of these Amended and Restated
Articles of Incorporation, as amended, or of the Code of Regulations of the
Corporation which affects adversely and materially the preferences or voting or
other rights of the holders of such series which are set forth in these Amended and
Restated Articles of Incorporation, as amended; provided, however, neither the
amendment of these Amended and Restated Articles of Incorporation, as amended, so
as to authorize, create or change the authorized or outstanding number of
Noncumulative Shares or of any shares remaining on a parity with or junior to the
Noncumulative Shares nor the amendment of the provisions of the Code of Regulations
so as to change the number or classification of directors of the Corporation shall
be deemed to affect adversely and materially preferences or voting or other rights
of the holder of such series.



     XIII. Definitions. For the purposes of this Division:




     (a) Whenever reference is made to shares “ranking prior to” Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares,
Noncumulative Shares or Voting Preferred Shares, such reference shall mean and
include all shares of the Corporation in respect of which the rights of the holders
thereof as to the payment of dividends or as to distributions in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the



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affairs of the Corporation are given preference over the rights of the holders
of Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares,
Class K Shares, Noncumulative Shares or Voting Preferred Shares, as the case may
be; and




     (b) Whenever reference is made to shares “on a parity with” Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares,
Noncumulative Shares or Voting Preferred Shares, such reference shall mean and
include all shares of the Corporation in respect of which the rights of the holders
thereof as to the payment of dividends or as to distributions in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the affairs of
the Corporation rank equally (except as to the amounts fixed therefor) with the
rights of the holders of Class A Shares, Class B Shares, Class C Shares, Class D
Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class I
Shares, Class J Shares, Class K Shares, Noncumulative Shares or Voting Preferred
Shares, as the case may be; and




     (c) Whenever reference is made to shares “ranking junior to” Class A Shares,
Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares,
Noncumulative Shares or Voting Preferred Shares, such reference shall mean and
include all shares of the Corporation other than those defined under Subsections
(a) and (b) of this Section as shares “ranking prior to” or “on a parity with”
Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares,
Class F Shares, Class G Shares, Class H Shares, Class I Shares, Class J Shares,
Class K Shares, Noncumulative Shares or Voting Preferred Shares, as the case may
be.



     XIV. Restrictions on Transfer to Preserve Tax Benefit; Shares Subject to Redemption.




     (a) Definitions. For the purposes of this Item XIV of this Division A of this
Article FOURTH, the following terms shall have the following meanings:




     “Beneficial Ownership” shall mean ownership of Preferred Shares by a Person who
would be treated as an owner of such Preferred Shares either directly or
constructively through the application of Section 544 of the Code, as modified by
Section 856(h) of the Code. The terms “Beneficial Owner,” “Beneficially Owns” and
“Beneficially Owned” shall have the correlative meanings.




     “Code” shall mean the Internal Revenue Code of 1986, as amended from time to
time.




     “Constructive Ownership” shall mean ownership of Preferred Shares by a Person
who would be treated as an owner of such Preferred Shares either directly or
constructively through the application of Section 318 of the Code, as modified



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by Section 856(d)(5) of the Code. The terms “Constructive Owner,”
“Constructively Owns” and “Constructively Owned” shall have the correlative
meanings.




     “Excess Preferred Shares” shall mean any Preferred Shares (i) acquired or
proposed to be acquired by any Person pursuant to a Transfer to the extent that, if
effective, such Transfer would result in the transferee either Beneficially Owning
Preferred Shares or Constructively Owning Preferred Shares in excess of the
Ownership Limit, or (ii) which are the subject of a Transfer that, if effective,
which would result in the Corporation being “closely held” within the meaning of
Section 856(h) of the Code.




     “Market Price” shall mean, with respect to any series of any class of Preferred
Shares, the last reported sales price of such series reported on the New York Stock
Exchange on the trading day immediately preceding the relevant date or, if shares of
such series are not then traded on the New York Stock Exchange, the last reported
sales price of shares of such series on the trading day immediately preceding the
relevant date as reported on any exchange or quotation system over which the shares
of such series may be traded, or if shares of such series are not then traded over
any exchange or quotation system, then the market price of shares of such series on
the relevant date as determined in good faith by the Board of Directors of the
Corporation.




     “Ownership Limit” shall mean, with respect to each series of each class of
Preferred Shares, 9.8% of the outstanding shares of such series.




     “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, an association, a private
foundation within the meaning of Section 509(a) of the Code, a joint stock company,
other entity or a group as that term is used for purposes of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended; provided, however, that a “person” does
not mean an underwriter which participates in a public offering of Preferred Shares,
for a period of 35 days following the purchase by such underwriter of such Preferred
Shares.




     “Preferred Shares” shall mean, collectively, Class A Shares, Class B Shares,
Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares,
Class H Shares, Class I Shares, Class J Shares, Class K Shares, Noncumulative Shares
and Voting Preferred Shares.




     “REIT” shall mean a Real Estate Investment Trust under Section 856 of the Code.




     “Transfer” shall mean any sale, transfer, gift, assignment, devise or other
disposition of Preferred Shares (including, without limitation, (i) the granting of



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any option or entering into any agreement for the sale, transfer or other
disposition of Preferred Shares or (ii) the sale, transfer, assignment or other
disposition of any securities or rights convertible into or exchangeable for
Preferred Shares), whether voluntary or involuntary, whether of record or
beneficially and whether by operation of law or otherwise.




     (b) Restrictions on Transfers.




     (i) Except as provided in Section (i) of this Item XIV of this
Division A of this Article FOURTH, no Person shall Beneficially Own
or Constructively Own shares of any series of any class of Preferred
Shares in excess of the Ownership Limit applicable to such series.




     (ii) Except as provided in Section (i) of this Item XIV of this
Division A of this Article FOURTH, any Transfer that, if effective,
would result in any Person Beneficially Owning shares of any series
of any class of Preferred Shares in excess of the Ownership Limit
applicable to such series shall be void ab initio as to the Transfer
of such Preferred Shares which would be otherwise Beneficially Owned
by such Person in excess of such Ownership Limit, and the intended
transferee shall acquire no rights in such Preferred Shares.




     (iii) Except as provided in Section (i) of this Item XIV of this
Division A of this Article FOURTH, any Transfer that, if effective,
would result in any Person Constructively Owning shares of any series
of any class of Preferred Shares in excess of the Ownership Limit
applicable to such series shall be void ab initio as to the Transfer
of such Preferred Shares which would be otherwise Constructively
Owned by such Person in excess of such amount, and the intended
transferee shall acquire no rights in such Preferred Shares.




     (iv) Notwithstanding any other provisions contained in this Item
XIV, any Transfer (whether or not such Transfer is the result of a
transaction entered into through the facilities of the New York Stock
Exchange) or other event that, if effective, would result in the
Corporation being “closely held” within the meaning of Section 856(h)
of the Code, or would otherwise result in the Corporation failing to
qualify as a REIT (including, but not limited to, a Transfer or other
event that would result in the Corporation owning (directly or
Constructively) an interest in a tenant that is described in Section
856(d)(2)(B) of the Code if the income derived by the Corporation
from such tenant would cause the Corporation to fail to satisfy any
of the gross income requirement of Section 856(c) of the Code) shall
be void ab initio as to the



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Transfer of the Preferred Shares or other event which would
cause the Corporation to be “closely held” within the meaning of
Section 856(h) of the Code or would otherwise result in the
Corporation failing to qualify as a REIT; and the intended transferee
or owner or Constructive or Beneficial Owner shall acquire or retain
no rights in such Preferred Shares.




     (v) For purposes of construing the foregoing provisions, any
attempt to transfer Preferred Shares in violation of the Ownership
Limit applicable to the series of the class of such Preferred Shares
(as such Ownership Limit may be modified by the Board of Directors
pursuant to Section (h) of Item XIV) shall be construed as causing
such Preferred Shares to be transferred by operation of law to the
Corporation as trustee of a trust for the exclusive benefit of the
person or persons to whom such Preferred Shares can ultimately be
transferred without violating the Ownership Limit and any Excess
Preferred Shares while held in such trust shall not have any voting
rights, shall not be considered for purposes of any shareholder vote
or for determining a quorum for such a vote, and shall not be
entitled to any dividends or other distributions.




     (c) Remedies for Breach. If the Board of Directors or its designees shall at
any time determine in good faith that a Transfer has taken place in violation of
Section (b) of this Item XIV of this Division A of this Article FOURTH or that a
Person intends to acquire or has attempted to acquire beneficial ownership
(determined without reference to any rules of attribution), Beneficial Ownership or
Constructive Ownership of any Preferred Shares of the Corporation in violation of
Section (b) of this Item XIV of this Division A of this Article FOURTH, or that any
such Transfer, intended or attempted acquisition or acquisition would jeopardize
the status of the Corporation as a REIT under the Code, the Board of Directors or
its designees shall take such actions as it deems advisable to refuse to give
effect or to prevent such Transfer, including, but not limited to, refusing to give
effect to such Transfer on the books of the Corporation or instituting proceedings
to enjoin such Transfer and, in addition, exercising its rights under Section (d)
of this Item XIV of this Division A of this Article FOURTH.




     (d) Purchase Right in Excess Preferred Shares. Beginning on the date of the
occurrence of a Transfer which, if consummated, in the good faith judgment of the
Board of Directors of the Corporation, could result in Excess Preferred Shares, the
Excess Preferred Shares, subject to such transfer shall be deemed to have been
offered for sale to the Corporation, 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
Preferred Shares (or, in the case of a devise or gift, the Market Price at the time
of such devise or gift) and (ii) the Market Price on the date the Corporation, or
its designee, accepts such offer. The Corporation shall have the



116









 







right to accept such offer for a period of 90 days after the later of (i) the
date of such Transfer and (ii) if the Corporation does not receive a notice of such
Transfer pursuant to Section (e) of this Item XIV of this Division A of this
Article FOURTH, the date the Board of Directors determines in good faith that such
Transfer has occurred. Prompt payment of the purchase price shall be made in such
reasonable manner as may be determined by the Corporation. From and after the date
fixed for purchase by the Corporation, and so long as payment of the purchase price
for the Excess Preferred Shares to be so purchased shall have been made or duly
provided for, the holder of any Excess Preferred Shares so called for purchase
shall cease to be entitled to dividends, distributions, voting rights and other
benefits with respect to such Excess Preferred Shares, excepting only the right to
payment of the purchase price fixed as aforesaid. Any dividend or distribution
paid to a proposed transferee of Excess Preferred Shares prior to the discovery by
the Corporation that the Excess Preferred Shares have been transferred in violation
of Section (b) of this Item XIV of this Division A of this Article FOURTH shall be
repaid to the Corporation upon demand. If the foregoing provisions are determined
to be void or invalid by virtue of any legal decision, statute, rule or regulation,
then the intended transferee of such Excess Preferred Shares shall be deemed, at
the option of the Corporation, to have acted as agent on behalf of the Corporation
in acquiring such Excess Preferred Shares and to hold such Excess Preferred Shares
on behalf of the Corporation.




     (e) Notice of Restricted Transfer. Any Person who acquires or attempts to
acquire Preferred Shares or other securities in violation of subparagraph (b) of
this Item XIV, or any Person who owns or will own Excess Preferred Shares as a
result of an event under subparagraph (b) of this Item XIV, shall immediately give
written notice to the Corporation of such event and shall provide to the
Corporation such other information as the Corporation may request in order to
determine the effect, if any, of such Transfer or attempted Transfer or other event
on the Corporation’s status as a REIT.




     (f) Owners Required to Provide Information. From and after the date of the
Initial Public Offering:




     (i) every Beneficial Owner of more than 5.0% (or such other
percentage, between 0.5% and 5.0%, as provided in the regulations
promulgated pursuant to the Code) of the outstanding Preferred Shares
of the Corporation shall, within 30 days after January 1 of each
year, give written notice to the Corporation stating the name and
address of such Beneficial Owner, the number of shares Beneficially
Owned, and description of how such shares are held. Each such
Beneficial Owner shall provide to the Corporation such additional
information as the Corporation may request in order to determine the
effect, if any, of such Beneficial Ownership on the Corporation’s
status as a REIT.



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     (ii) each Person who is a Beneficial Owner or Constructive Owner
of Preferred Shares and each Person (including the shareholder of
record) who is holding Preferred Shares for a Beneficial Owner or
Constructive Owner shall provide to the Corporation such information
that the Corporation may request, in good faith, in order to
determine the Corporation’s status as a REIT.




     (g) Remedies Not Limited. Nothing contained in this Division A of this
Article FOURTH shall limit the authority of the Board of Directors to take such
other action as it deems necessary or advisable to protect the Corporation and the
interests of its shareholders by preservation of the Corporation’s status as a
REIT.




     (h) Ambiguity. In the case of an ambiguity in the application of any of the
provisions of this Item XIV of this Division A of this Article FOURTH, including
any definition contained in Section (a) of this Item XIV, the Board of Directors
shall have the power to determine the application of the provisions of this Item
XIV with respect to any situation based on the facts known to it.




          (1) Exceptions.




     (i) Subject to Section (b)(iv) of this Item XIV of this Division
A, the Board of Directors may exempt a Person from the Ownership
Limit applicable to a series of a class of Preferred Shares if such
Person is not an individual (other than pension plans described in
Section 856(h)(3)) for purposes of Section 542(a)(2) of the Code if
the Board of Directors obtains such representations and undertakings
from such Person as are reasonably necessary to ascertain that no
individual’s Beneficial Ownership of such Preferred Shares will
violate the Ownership Limit, and agrees that any violation or
attempted violation will result in such Preferred Shares in excess of
the Ownership Limit being subject to repurchase by the Corporation as
set forth in Section (d) of this Item XIV of this Division A of this
Article FOURTH.




     (ii) The Board of Directors may exempt a Person from the
limitation on such Person Constructively Owning Preferred Shares in
excess of the Ownership Limit applicable to a series of a class of
such Preferred Shares if such Person does not own and represents that
it will not own, directly or constructively (by virtue of the
application of Section 318 of the Code, as modified by Section
856(d)(5) of the Code), more than a 9.8% interest (as set forth in
Section 856(d)(2)(B)) in a tenant of any real property owned or
leased by the Corporation, if the Board of Directors obtains such
representations and undertakings from such Person as are reasonably
necessary to ascertain this fact and agrees that any



118









 







violation or attempted violation will result in such Preferred
Shares in excess of the Ownership Limit being deemed to be Excess
Preferred Shares and subject to repurchase by the Corporation as set
forth in Section (d) of this Item XIV of this Division A of this
Article FOURTH.



     XV. Legend. Each certificate for Preferred Shares shall bear the following legend:



          “The Preferred Shares represented by this certificate are subject to restrictions on transfer
for the purpose of the corporation’s maintenance of its status as a Real Estate Investment Trust
under the Internal Revenue Code of 1986, as amended. Subject to certain provisions of the
Corporation’s Articles of Incorporation, no Person may Beneficially Own or Constructively Own
shares of any series of any class of Preferred Shares in excess of 9.8% of the outstanding
Preferred Shares of such series. Any Person who attempts to Beneficially Own or Constructively Own
shares of any series of any class of Preferred Shares in excess of the above limitations must
immediately notify the Corporation. All capitalized terms in this legend have the meanings defined
in the Corporation’s Articles of Incorporation, a copy of which, including the restrictions on
transfer, will be sent without charge to each shareholder who so requests. If the restrictions on
transfer are violated, certain of the Preferred Shares represented hereby may be subject to
repurchase by the Corporation on the terms and conditions set forth in the Corporation’s Articles
of Incorporation.



     XVI. The Voting Preferred Shares. The Voting Preferred Shares shall have the following
express terms:




     Section 1. General. The Voting Preferred Shares shall rank on a parity with the Class A
Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares, Class K Shares and
Noncumulative Shares and shall be identical to all Class A Shares, Class B Shares, Class C
Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares,
Class I Shares, Class J Shares, Class K Shares and Noncumulative Shares except as set forth
in the provisions of Sections 2 through 10, both inclusive, which provisions shall apply to
all of the Voting Preferred Shares.




     Section 2. Definitions. For purposes of the Voting Preferred Shares, the following
terms shall have the meanings indicated:




     “Board of Directors” shall mean the Board of Directors of the Corporation or any
committee authorized by such Board of Directors to perform any of its responsibilities with
respect to the Voting Preferred Shares; provided that, for purposes of paragraph (a) of
Section 8, the term “Board of Directors” shall not include any such committee.




     “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 are not required to be
open.




     “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.



119









 






     “Dividend Payment Date” shall mean March 31, June 30, September 30 and December 31 of
each year; provided, that if any Dividend Payment Date falls on any day other than a
Business Day, the dividend payment payable on such Dividend Payment Date shall be paid on
the Business Day immediately following such Dividend Payment Date and no interest shall
accrue on such dividend from such Dividend Payment Date to the date such dividend is paid.




     “Dividend Periods” shall mean each quarterly dividend period commencing on and
including March 31, June 30, September 30 and December 31 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend Period, other than
the Dividend Period during which any Voting Preferred Shares shall be redeemed pursuant to
Section 5, which shall end on and include the Redemption Date with respect to the Voting
Preferred Shares being redeemed.




     “Event” shall have the meaning set forth in paragraph (b) (i) of Section 8.




     “Liquidation Preference” shall have the meaning set forth in paragraph (a) of Section 4.




     “REIT” shall mean a Real Estate Investment Trust under Section 856 of the Code.




     “set apart for payment” shall be deemed to include, without any action other than the
following, the recording by the Corporation 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 Directors, the allocation of funds to be so paid on any series
or class of capital stock of the Corporation; provided, however, that if any funds for any
class or series of shares ranking junior to the Voting Preferred Shares or any class or
series of shares ranking on a parity with the Voting Preferred Shares are placed in a
separate account of the Corporation or delivered to a disbursing, paying or other similar
agent, then “set apart for payment” with respect to the Voting Preferred Shares shall mean
placing such funds in a separate account or delivering such funds to a disbursing, paying or
other similar agent.




     Section 3. Dividends. (a) The holders of Voting Preferred Shares shall be entitled to
receive, when and as declared by the Board of Directors out of funds legally available for
that purpose, cumulative dividends payable in cash in an amount per Voting Preferred Share
equal to $2.3438 per annum (equivalent to 9 3/8% of the per share Liquidation Preference per
annum). Such dividends shall be cumulative from the first day of the Dividend Period in
which the Closing Date (as defined in that certain Agreement and Plan of Merger dated as of
October 4, 2002 by and among the Corporation, JDN Realty Corporation and DDR Transitory Sub,
Inc.) shall occur, whether or not in any Dividend Period or Periods such dividends shall be
declared or there shall be funds of the Corporation legally available for the payment of
such dividends, and shall be payable quarterly in arrears on each Dividend Payment Date.
Each such dividend shall be payable in arrears to the holders of record of the Voting
Preferred Shares, as they appear on the stock records of the Corporation at the close of
business on the fifteenth day of the calendar month in which the applicable Dividend Payment
Date falls on or such other




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date designated by the Board of Directors for the payment of dividends that is not
more than 45 nor less than 10 days prior to such Dividend Payment Date, as the case may
be, immediately preceding such Dividend Payment Date. No dividends on the Voting
Preferred Shares shall be declared by the Board of Directors or be paid or set apart
for payment by the Corporation at such time as any agreement of the Corporation,
including any agreement relating to the Corporation’s 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, payment or setting apart for payment shall be
restricted or prohibited by law. Accumulated, accrued and unpaid dividends for any past
Dividend Periods may be declared and paid at any time, without reference to any regular
Dividend Payment Date, to holders of record on such date, which date shall not precede
by more than 45 days the payment date thereof, as may be fixed by the Board of
Directors.




     (b) Any dividend payable on the Voting Preferred Shares for any partial dividend period
shall be computed ratably on the basis of twelve 30-day months and a 360-day year. Holders
of Voting Preferred Shares shall not be entitled to any dividends, whether payable in cash,
property or stock, in excess of full cumulative dividends, as herein provided, on the Voting
Preferred Shares. No interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on the Voting Preferred Shares that may be in
arrears. Any dividend payment made on the Voting Preferred Shares shall first be credited
against the earliest accrued but unpaid dividend due with respect to such shares which
remains payable.




     (c) If, for any taxable year, the Corporation elects to designate as “capital gain
dividends” (as defined in Section 857 of the Code) any portion (the “Capital Gains Amount”)
of the total distributions (as determined for federal income tax purposes) paid or made
available for the year to holders of all classes of capital stock (the “Total Dividends”),
then the portion of the Capital Gains Amount that shall be allocable to holders of Voting
Preferred Shares shall be in the same proportion that the Total Dividends paid or made
available to the holders of Voting Preferred Shares for the year bears to the Total
Dividends. If, for any taxable year, the Corporation elects, as provided in Section
857(b)(3)(D) of the Code, to designate as “undistributed capital gains” any portion of the
Corporation’s total net capital gains for the taxable year, then such undistributed capital
gains shall be allocated between the holders of the Voting Preferred Shares and the holders
of other classes or series of capital stock of the Corporation in a manner that is
consistent with such allocations being considered other than a “preferential dividend”
within the meaning of Section 562(c) of the Code.




     (d) So long as any of the Voting Preferred Shares are outstanding, except as described
in the immediately following sentence, no dividends shall be declared or paid or set apart
for payment by the Corporation and no other distribution of cash or other property shall be
declared or made, directly or indirectly, by the Corporation with respect to any shares
ranking on a parity unless, in each case, dividends equal to the full amount of accumulated,
accrued and unpaid dividends on all outstanding Voting Preferred Shares have been or
contemporaneously are declared and paid or declared and a sum sufficient for the payment
thereof has been or contemporaneously is set apart for payment of such



121









 







dividends on the Voting Preferred Shares for all Dividend Periods ending on or prior to the
date such dividend or distribution is declared, paid, set apart for payment or made, as the
case may be, with respect to such shares ranking on a parity. When dividends are not paid in
full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon the Voting Preferred Shares and all dividends declared upon any shares ranking
on a parity shall be declared ratably in proportion to the respective amounts of dividends
accumulated, accrued and unpaid on the Voting Preferred Shares and accumulated, accrued and
unpaid on such shares ranking on a parity.




     (e) So long as any of the Voting Preferred Shares are outstanding, no dividends (other
than dividends or distributions paid in shares, or options, warrants or rights to subscribe
for or purchase shares, ranking junior to the Voting Preferred Shares) shall be declared or
paid or set apart for payment by the Corporation and no other distribution of cash or other
property shall be declared or made, directly or indirectly, by the Corporation with respect
to any shares ranking junior to the Voting Preferred Shares, nor shall any shares ranking
junior to the Voting Preferred Shares be redeemed, purchased or otherwise acquired (other
than a redemption, purchase or other acquisition of Common Shares made for purposes of an
employee incentive, benefit or stock purchase plan of the Corporation or any subsidiary) for
any consideration (or any monies be paid to or made available for a sinking fund for the
redemption of any shares of any such stock), directly or indirectly, by the Corporation
(except by conversion into or exchange for shares, or options, warrants or rights to
subscribe for or purchase shares, ranking junior to the Voting Preferred Shares), nor shall
any other cash or other property otherwise be paid or distributed to or for the benefit of
any holder of shares ranking junior to the Voting Preferred Shares in respect thereof,
directly or indirectly, by the Corporation unless, in each case, dividends equal to the full
amount of all accumulated, accrued and unpaid dividends on all outstanding Voting Preferred
Shares have been declared and paid, or such dividends have been declared and a sum
sufficient for the payment thereof has been set apart for such payment, on all outstanding
Voting Preferred Shares for all Dividend Periods ending on or prior to the date such
dividend or distribution is declared, paid, set apart for payment or made with respect to
such shares ranking junior to the Voting Preferred Shares, or the date such shares ranking
junior to the Voting Preferred Shares are redeemed, purchased or otherwise acquired or
monies paid to or made available for any sinking fund for such redemption, or the date any
such cash or other property is paid or distributed to or for the benefit of any holders of
shares ranking junior to the Voting Preferred Shares in respect thereof, as the case may be.




     (f) In determining the extent to which a distribution with respect to the Voting
Preferred Shares constitutes a dividend for tax purposes, the earnings and profits of the
Corporation will be allocated, on a pro rata basis, in accordance with the ranking of the
class of capital stock or series of capital stock, constituting a class within the meaning
of Code Section 562(c), of the Corporation, as described in Section 7.




     Notwithstanding the provisions of this Section 3, the Corporation shall not be
prohibited from (i) declaring or paying or setting apart for payment any dividend or
distribution on any shares ranking junior to or on a parity with the Voting Preferred Shares
or (ii) redeeming, purchasing or otherwise acquiring any shares ranking junior to



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or on a parity with the Voting Preferred Shares, in each case, if such declaration, payment,
redemption, purchase or other acquisition is necessary in order to assist in maintaining the
continued qualification of the Corporation as a REIT under Section 856 of the Code.




     Section 4. Liquidation Preference. (a) In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, before any payment or
distribution by the Corporation (whether of capital, surplus or otherwise) shall be made to
or set apart for the holders of shares ranking junior to the Voting Preferred Shares, the
holders of Voting Preferred Shares shall be entitled to receive Twenty-Five Dollars ($25.00)
per Voting Preferred Share (the “Liquidation Preference”), plus an amount equal to all
dividends accumulated, accrued and unpaid thereon to the date of final distribution to such
holders; but such holders shall not be entitled to any further payment. Until the holders of
the Voting Preferred Shares have been paid the Liquidation Preference in full, plus an
amount equal to all dividends accumulated, accrued and unpaid thereon to the date of final
distribution to such holders, no payment will be made to any holder of shares ranking junior
to the Voting Preferred Shares upon the liquidation, dissolution or winding up of the
Corporation. If, upon any liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation, or proceeds thereof, distributable among the holders of Voting
Preferred Shares shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares ranking on a parity with the Voting Preferred
Shares, then such assets, or the proceeds thereof, shall be distributed among the holders of
Voting Preferred Shares and any such other shares ranking on a parity with the Voting
Preferred Shares ratably in the same proportion as the respective amounts that would be
payable on such Voting Preferred Shares and any such other shares ranking on a parity with
the Voting Preferred Shares if all amounts payable thereon were paid in full. For the
purposes of this Section 4, (i) a consolidation or merger of the Corporation with or into
one or more other entities, (ii) a sale, lease, transfer or conveyance of all or
substantially all of the Corporation’s assets, or (iii) a statutory share exchange shall not
be deemed to be a liquidation, dissolution or winding up, voluntary or involuntary, of the
Corporation.




     (b) Upon any liquidation, dissolution or winding up of the Corporation, after payment
shall have been made in full to the holders of Voting Preferred Shares and any shares
ranking on a parity with the Voting Preferred Shares, as provided in this Section 4, any
other shares ranking junior to the Voting Preferred Shares shall, subject to the respective
terms thereof, be entitled to receive any and all assets remaining to be paid or
distributed, and the holders of the Voting Preferred Shares and any shares ranking on a
parity with the Voting Preferred Shares shall not be entitled to share therein.




     Section 5. Redemption at the Option of the Corporation. (a) Shares of Voting Preferred
Shares shall not be redeemable by the Corporation prior to September 15, 2003. On and after
September 15, 2003, the Corporation, at its option, may redeem Voting Preferred Shares, in
whole or from time to time in part, at a redemption price payable in cash equal to $25.00
per share, plus all accumulated, accrued and unpaid dividends to the date fixed for
redemption (the “Redemption Date”); provided, however, that in the event of a redemption of
Voting Preferred Shares, if the Redemption Date occurs after a



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dividend record date and on or prior to the related Dividend Payment Date, the dividend
payable on such Dividend Payment Date in respect of such shares called for redemption shall
be payable on such Dividend Payment Date to the holders of record at the close of business
on such dividend record date, and shall not be payable as part of the redemption price for
such shares. In connection with any redemption pursuant to this Section 5(a), the redemption
price of the Voting Preferred Shares (other than any portion thereof consisting of
accumulated, accrued and unpaid dividends) shall be payable solely with the proceeds from
the sale by the Corporation of other capital shares of the Corporation (whether or not such
sale occurs concurrently with such redemption). For purposes of the preceding sentence,
“capital shares” means any common shares, preferred shares, depositary shares,
participations or other ownership interests (however designated) and any rights (other than
debt securities convertible into or exchangeable at the option of the holder for equity
securities (unless and to the extent such debt securities are subsequently converted into
capital shares)) or options to purchase any of the foregoing of or in the Corporation.




     (b) The Redemption Date shall be selected by the Corporation, shall be specified in the
notice of redemption and shall be not less than 30 days nor more than 60 days after the date
notice of redemption is sent by the Corporation.




     (c) If full cumulative dividends on all outstanding Voting Preferred Shares have not
been declared and paid, or declared and set apart for payment, no Voting Preferred Shares
may be redeemed unless all outstanding Voting Preferred Shares are simultaneously redeemed,
and neither the Corporation nor any affiliate of the Corporation may purchase or acquire
Voting Preferred Shares other than pursuant to a purchase or exchange offer made on the same
terms to all holders of Voting Preferred Shares.




     (d) If the Corporation shall redeem Voting Preferred Shares pursuant to paragraph (a)
of this Section 5, notice of such redemption shall be given to each holder of record of the
shares to be redeemed. Such notice shall be provided by first class mail, postage prepaid,
at such holder’s address as the same appears on the stock records of the Corporation.
Neither the failure to mail any notice required by this paragraph (d), nor any defect
therein or in the mailing thereof to any particular holder, shall affect the sufficiency of
the notice or the validity of the proceedings for redemption with respect to the other
holders. Any notice which was mailed in the manner herein provided shall be conclusively
presumed to have been duly given on the date mailed whether or not the holder receives the
notice. Each such notice shall state, as appropriate: (1) the Redemption Date; (2) the
number of Voting Preferred Shares to be redeemed and, if fewer than all such shares held by
such holder are to be redeemed, the number of such shares to be redeemed from such holder;
(3) the place or places at which certificates for such shares are to be surrendered for
cash; and (4) the redemption price payable on such Redemption Date, including, without
limitation, a statement as to whether or not accumulated, accrued and unpaid dividends will
be (x) payable as part of the redemption price, or (y) payable on the next Dividend Payment
Date to the record holder at the close of business on the relevant record date as described
in the next succeeding sentence.



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     Notice having been mailed as aforesaid, from and after the Redemption Date (unless the
Corporation shall fail to make available the amount of cash necessary to effect such
redemption), (i) dividends on the Voting Preferred Shares so called for redemption shall
cease to accumulate or accrue on the Voting Preferred Shares called for redemption, (ii)
said shares shall no longer be deemed to be outstanding, and (iii) all rights of the holders
thereof as holders of Voting Preferred Shares of the Corporation shall cease except the
rights to receive the cash payable upon such redemption, without interest thereon, upon
surrender and endorsement of their certificates if so required; provided, however, that if
the Redemption Date for any Voting Preferred Shares occurs after any dividend record date
and on or prior to the related Dividend Payment Date, the full dividend payable on such
Dividend Payment Date in respect of such Voting Preferred Shares called for redemption shall
be payable on such Dividend Payment Date to the holders of record of such shares at the
close of business on the corresponding dividend record date notwithstanding the prior
redemption of such shares. The Corporation’s obligation to make available the redemption
price in accordance with the preceding sentence shall be deemed fulfilled if, on or before
the applicable Redemption Date, the Corporation shall irrevocably deposit in trust with a
bank or trust company (which may not be an affiliate of the Corporation) that has, or is an
affiliate of a bank or trust company that has, a capital and surplus of at least
$50,000,000, such amount of cash as is necessary for such redemption plus, if such
Redemption Date occurs after any dividend record date and on or prior to the related
Dividend Payment Date, such amount of cash as is necessary to pay the dividend payable on
such Dividend Payment Date in respect of such Voting Preferred Shares called for redemption,
with irrevocable instructions that such cash be applied to the redemption of the Voting
Preferred Shares so called for redemption and, if applicable, the payment of such dividend.
No interest shall accrue for the benefit of the holders of Voting Preferred Shares to be
redeemed on any cash so set aside by the Corporation. Subject to applicable escheat laws,
any such cash unclaimed at the end of two years from the Redemption Date shall revert to the
general funds of the Corporation, after which reversion the holders of Voting Preferred
Shares so called for redemption shall look only to the general funds of the Corporation for
the payment of such cash.




     As promptly as practicable after the surrender in accordance with such notice of the
certificates for any such Voting Preferred Shares to be so redeemed (properly endorsed or
assigned for transfer, if the Corporation shall so require and the notice shall so state),
such certificates shall be exchanged for cash (without interest thereon) for which such
shares have been redeemed in accordance with such notice. If fewer than all the outstanding
Voting Preferred Shares are to be redeemed, shares to be redeemed shall be selected by the
Corporation from outstanding Voting Preferred Shares not previously called for redemption by
lot or, with respect to the number of Voting Preferred Shares held of record by each holder
of such shares, pro rata (as nearly as may be) or by any other method as may be determined
by the Board of Directors in its discretion to be equitable. If fewer than all the shares of
Voting Preferred Shares represented by any certificate are redeemed, then a new certificate
representing the unredeemed shares shall be issued without cost to the holders thereof.



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     Section 6. Status of Reacquired Shares. All Voting Preferred Shares which shall have
been issued and reacquired in any manner by the Corporation shall be deemed retired.




     Section 7. Ranking. The Voting Preferred Shares rank prior to, on a parity with, or
junior to other shares of capital stock of the Corporation in accordance with Item XIII of
this Division A.




     Section 8. Voting. (a) If and whenever six quarterly dividends (whether or not
consecutive) payable on the Voting Preferred Shares or any series or class of shares ranking
on a parity with the Voting Preferred Shares shall be in arrears (which shall, with respect
to any such quarterly dividend, mean that any such dividend has not been paid in full), the
number of directors then constituting the Board of Directors shall be increased by two (if
not already increased by reason of similar types of provisions with respect to shares
ranking on a parity with the Voting Preferred Shares of any other class or series which is
entitled to similar voting rights (the “Arrearage Voting Preferred Shares”)) and the holders
of Voting Preferred Shares, together with the holders of shares of all other Arrearage
Voting Preferred Shares then entitled to exercise similar voting rights, voting as a single
class regardless of class or series, shall be entitled to elect the two additional directors
to serve on the Board of Directors at any annual meeting of shareholders or special meeting
held in place thereof, or at a special meeting of the holders of the Voting Preferred Shares
and the Arrearage Voting Preferred Shares called as hereinafter provided. Whenever all
arrearages in dividends on the Voting Preferred Shares and the Arrearage Voting Preferred
Shares then outstanding shall have been paid and dividends thereon for the current quarterly
dividend period shall have been declared and paid, or declared and set apart for payment,
then the right of the holders of the Voting Preferred Shares and the Arrearage Voting
Preferred Shares to elect such additional two directors shall cease (but subject always to
the same provision for the vesting of such voting rights in the case of any similar future
arrearages), and the terms of office of all persons elected as directors by the holders of
the Voting Preferred Shares and the Arrearage Voting Preferred Shares shall forthwith
terminate and the number of directors constituting the Board of Directors shall be reduced
accordingly. At any time after such voting power shall have been so vested in the holders of
Voting Preferred Shares and the Arrearage Voting Preferred Shares, if applicable, the
Secretary of the Corporation may, and upon the written request of any holder of at least ten
percent (10%) of Voting Preferred Shares (addressed to the Secretary at the principal office
of the Corporation) shall, call a special meeting of the holders of the Voting Preferred
Shares and of the Arrearage Voting Preferred Shares for the election of the two directors to
be elected by them as herein provided, such call to be made by notice similar to that
provided in the Code of Regulations of the Corporation for a special meeting of the
shareholders or as required by law. If any such special meeting required to be called as
above provided shall not be called by the Secretary within 20 days after receipt of any such
request, then any holder of Voting Preferred Shares may call such meeting, upon the notice
above provided, and for that purpose shall have access to the stock books of the
Corporation. The directors elected at any such special meeting shall hold office until the
next annual meeting of the shareholders or special meeting held in lieu thereof if such
office shall not have previously terminated as above provided. If any vacancy shall occur
among the directors



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elected by the holders of the Voting Preferred Shares and the Arrearage Voting Preferred
Shares, a successor shall be elected by the Board of Directors, upon the nomination of the
then-remaining director elected by the holders of the Voting Preferred Shares and the
Arrearage Voting Preferred Shares or the successor of such remaining director, to serve
until the next annual meeting of the shareholders or special meeting held in place thereof
if such office shall not have previously terminated as provided above.




     (b) So long as any Voting Preferred Shares are outstanding, in addition to any other
vote or consent of shareholders required by law or by the Amended and Restated Articles of
Incorporation of the Corporation, the affirmative vote of at least 66-2/3% of the votes
entitled to be cast by the holders of the Voting Preferred Shares voting as a single class
with the holders of all other classes or series of shares ranking on a parity with the
Voting Preferred Shares entitled to vote on such matters, given in person or by proxy,
either in writing without a meeting or by vote at any meeting called for the purpose, shall
be necessary for effecting or validating:




          (i) Any amendment, alteration or repeal of any of the provisions of, or the addition of
any provision to, the Amended and Restated Articles of Incorporation or the Code of
Regulations of the Corporation, whether by merger, consolidation or otherwise (an “Event”),
that materially adversely affects the voting powers, rights or preferences of the holders of
the Voting Preferred Shares; provided, however, that the amendment of the provisions of the
Amended and Restated Articles of Incorporation (A) so as to authorize or create, or to
increase the authorized amount of, or issue, any shares ranking junior to the Voting
Preferred Shares or any shares of any class or series of shares ranking on a parity with the
Voting Preferred Shares or (B) with respect to the occurrence of any Event, so long as the
Voting Preferred Shares remains outstanding with the terms thereof materially unchanged,
taking into account that upon the occurrence of the Event, the Corporation may not be the
surviving entity, shall not in either case be deemed to materially adversely affect the
voting powers, rights or preferences of the holders of Voting Preferred Shares; or




          (ii) The authorization, creation of, increase in the authorized amount of, or issuance
of any shares of any class or series of shares ranking prior to the Voting Preferred Shares
or any security convertible into shares of any class or series of shares ranking prior to
the Voting Preferred Shares (whether or not such class or series of shares ranking prior to
the Voting Preferred Shares is currently authorized); provided, however, that no such vote
of the holders of Voting Preferred Shares shall be required if, at or prior to the time when
such amendment, alteration or repeal is to take effect, or when the issuance of any such
shares ranking prior to the Voting Preferred Shares or convertible or exchangeable security
is to be made, as the case may be, provision is made for the redemption of all shares of
Voting Preferred Shares at the time outstanding to the extent such redemption is authorized
by Section 5.




     (c) In addition to the foregoing, the holders of Voting Preferred Shares shall be
entitled to vote on all matters (for which holders of Common Shares shall be entitled to
vote thereon) at all meetings of the shareholders of the Corporation, and shall be entitled
to one vote for each Voting Preferred Share entitled to vote at such meeting.



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     Section 9. Record Holders. The Corporation and its transfer agent may deem and treat
the record holder of any Voting Preferred Shares as the true and lawful owner thereof for
all purposes, and neither the Corporation nor such transfer agent shall be affected by any
notice to the contrary.




     Section 10. Restrictions on Ownership and Transfers. The Voting Preferred Shares are
subject to the provisions of Article XIV of this Division A pertaining to restrictions on
ownership and transfers, including without limitation the provisions relative to Excess
Preferred Shares (as defined in Item XIV).



DIVISION B




          Subject to the terms of the Cumulative Shares and the Noncumulative Preferred Shares, the
Common Shares shall have the following express terms:





     Section 1. Dividend Rights. The holders of Common Shares shall be entitled to receive,
when, as and if declared by the Board of Directors of the Corporation, out of the assets of
the Corporation which are by law available therefor, dividends or distributions payable in
cash, in property or in securities of the Corporation.




     Section 2. Rights Upon Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of, or any distribution of the assets of, the
Corporation, each holder of Common Shares shall be entitled to receive, ratably with each
other holder of Common Shares, that portion of the assets of the Corporation available for
distribution to its shareholders as the number of Common Shares held by such holder bears to
the total number of Common Shares then outstanding.




     Section 3. Voting Rights. The holders of Common Shares shall be entitled to vote on all
matters (for which holders of Common Shares shall be entitled to vote thereon) at all
meetings of the shareholders of the Corporation, and shall be entitled to one vote for each
Common Share entitled to vote at such meeting.




     Section 4. Restrictions on Transfer to Preserve Tax Benefit; Common Shares Subject to
Redemption.




     (a) Definitions. For the purposes of this Section 4 of this Division B of this
Article FOURTH, the following terms shall have the following meanings:




     “Beneficial Ownership” shall mean ownership of Common Shares by a Person who
would be treated as an owner of such Common Shares either directly or constructively
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 the correlative meanings.




     “Code” shall mean the Internal Revenue Code of 1986, as amended from time to
time.



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     “Constructive Ownership” shall mean ownership of Common Shares by a Person who
would be treated as an owner of such Common Shares either directly or Constructively
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 the correlative meanings.




     “Excess Shares” shall mean any Common Shares (i) acquired or proposed to be
acquired by any Person (other than an Existing Holder) pursuant to a Transfer to the
extent that, if effective, such Transfer would result in the transferee either (A)
Beneficially Owning Common Shares in excess of the Ownership Limit or (B)
Constructively Owning Common Shares in excess of the Related Party Limit, (ii)
acquired or proposed to be acquired by an Existing Holder pursuant to a Transfer to
the extent that, if effective, such Transfer would result in such Existing Holder
Beneficially Owning Common Shares in excess of the Existing Holder Limit for such
Existing Holder, or (iii) which are the subject of a Transfer that, if effective,
which would result in (A) the Common Shares being owned by fewer than 100 Persons
(determined without reference to any rules of attribution), or (B) the Corporation
being “closely held” within the meaning of Section 856(h) of the Code.




     “Existing Holder” shall mean (i) Bert L. Wolstein, (ii) Scott A. Wolstein,
(iii) James A. Schoff, and (iv) any Person to whom an Existing Holder Transfers
Beneficial Ownership of Common Shares causing such transferee to Beneficially Own
Common Shares in excess of the Ownership Limit.




     “Existing Holder Limit” (i) for any Existing Holder who is an Existing Holder
by virtue of clause (i), (ii) or (iii) of the definition thereof, shall mean,
initially, the percentage of the outstanding Common Shares Beneficially Owned by
such Existing Holder upon the consummation of the Initial Public Offering, and after
any adjustment pursuant to Section (4)(i) of this Division B of this Article FOURTH,
shall mean such percentage of the outstanding Common Shares as so adjusted; and (ii)
for any Existing Holder who becomes an Existing Holder by virtue of clause (iv) of
the definition thereof, shall mean, initially, the percentage of the outstanding
Common Shares Beneficially Owned by such Existing Holder at the time that such
Existing Holder becomes an Existing Holder, and after any adjustment pursuant to
Section 4(i) of this Division B of this Article FOURTH, shall mean such percentage
of the outstanding Common Shares as so adjusted. From and after the date of the
Initial Public Offering, the secretary of the Corporation shall maintain and, upon
request, make available to each Existing Holder, a schedule which sets forth the
then current Existing Holder Limits for each Existing Holder.




     “Initial Public Offering” means the sale of Common Shares pursuant to the
Corporation’s first effective registration statement for such Common Shares filed
under the Securities Act of 1933, as amended.



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     “Market Price” shall mean the last reported sales price of Common Shares
reported on the New York Stock Exchange on the trading day immediately preceding the
relevant date or, if the Common Shares are not then traded on the New York Stock
Exchange, the last reported sales price of the Common Shares on the trading day
immediately preceding the relevant date as reported on any exchange or quotation
system over which the Common Shares may be traded, or if the Common Shares are not
then traded over any exchange or quotation system, then the market price of the
Common Shares on the relevant date as determined in good faith by the Board of
Directors of the Corporation.




     “Ownership Limit” shall mean 5.0% of the outstanding Common Shares of the
Corporation.




     “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, an association, a private
foundation within the meaning of Section 509(a) of the Code, a joint stock company,
other entity or a group as that term is used for purposes of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended; provided, however, that a “Person” does
not mean an underwriter which participates in a public offering of the Common
Shares, for a period of 35 days following the purchase by such underwriter of the
Common Shares.




     “REIT” shall mean a Real Estate Investment Trust under Section 856 of the Code.




     “Related Party Limit” shall mean 9.8% of the outstanding Common Shares of the
Corporation.




     “Transfer” shall mean any sale, transfer, gift, assignment, devise or other
disposition of Common Shares (including, without limitation, (i) the granting of any
option or entering into any agreement for the sale, transfer or other disposition of
Common Shares or (ii) the sale, transfer, assignment or other disposition of any
securities or rights convertible into or exchangeable for Common Shares), whether
voluntary or involuntary, whether of record or beneficially and whether by operation
of law or otherwise.



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     (b) Restrictions on Transfers.




     (i) Except as provided in Section 4(i) of this Division B of
this Article FOURTH, from and after the date of the Initial Public
Offering, no Person (other than an Existing Holder) shall
Beneficially Own Common Shares in excess of the Ownership Limit and
no Existing Holder shall Beneficially Own Common Shares in excess of
the Existing Holder Limit for such Existing Holder.




     (ii) Except as provided in Section 4(i) of this Division B of
this Article FOURTH, from and after the date of the Initial Public
Offering, any Transfer that, if effective, would result in any Person
(other than an Existing Holder) Beneficially Owning Common Shares in
excess of the Ownership Limit shall be void ab initio as to the
Transfer of such Common Shares which would be otherwise Beneficially
Owned by such Person in excess of the Ownership Limit, and the
intended transferee shall acquire no rights in such Common Shares.




     (iii) Except as provided in Section 4(i) of this Division B of
this Article FOURTH, from and after the date of the Initial Public
Offering, any Transfer that, if effective, would result in any
Existing Holder Beneficially Owning Common Shares in excess of the
applicable Existing Holder Limit shall be void ab initio as to the
Transfer of such Common Shares which would be otherwise Beneficially
Owned by such Existing Holder in excess of the applicable Existing
Holder Limit, and such Existing Holder shall acquire no rights in
such Common Shares.




     (iv) Except as provided in Section 4(i) of this Division B of
this Article FOURTH, from and after the date of the Initial Public
Offering, any Transfer that, if effective, would result in any Person
Constructively Owning Common Shares in excess of the Related Party
Limit shall be void ab initio as to the Transfer of such Common
Shares which would be otherwise Constructively Owned by such Person
in excess of such amount, and the intended transferee shall acquire
no rights in such Common Shares.




     (v) Except as provided in Section 4(i) of this Division B of
this Article FOURTH, from and after the date of the Initial Public
Offering, any Transfer that, if effective, would result in the Common
Shares being beneficially owned by less than 100 Persons (determined
without reference to any rules of attribution) shall be void ab
initio as to the Transfer of such Common Shares which would be
otherwise beneficially owned by the transferee,



131









 







and the intended transferee shall acquire no rights in such
Common Shares.




     (vi) From and after the date of the Initial Public Offering, any
Transfer that, if effective, would result in the Corporation being
“closely held” within the meaning of Section 856(h) of the Code shall
be void ab initio as to the Transfer of the Common Shares which would
cause the Corporation to be “closely held” within the meaning of
Section 856(h) of the Code, and the intended transferee shall acquire
no rights in such Common Shares.




     (c) Remedies for Breach. If the Board of Directors or its designees shall at
any time determine in good faith that a Transfer has taken place in violation of
Section 4(b) of this Division B of this Article FOURTH or that a Person intends to
acquire or has attempted to acquire beneficial ownership (determined without
reference to any rules of attribution), Beneficial Ownership or Constructive
Ownership of any Common Shares of the Corporation in violation of Section 4(b) of
this Division B of this Article FOURTH, or that any such Transfer, intended or
attempted acquisition or acquisition would jeopardize the status of the Corporation
as a REIT under the Code, the Board of Directors or its designees shall take such
actions as it deems advisable to refuse to give effect or to prevent such Transfer,
including, but not limited to, refusing to give effect to such Transfer on the
books of the Corporation or instituting proceedings to enjoin such Transfer and, in
addition, exercising its rights under Section 4(d) of this Division B of this
Article FOURTH.




     (d) Purchase Right in Excess Shares. Beginning on the date of the occurrence
of a Transfer which, if consummated, in the good faith judgment of the Board of
Directors of the Corporation, could result in Excess Shares, such Excess Shares
shall be deemed to have been offered for sale to the Corporation, 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 a devise or gift,
the Market Price at the time of such devise or gift) and (ii) the Market Price on
the date the Corporation, or its designee, accepts such offer. The Corporation
shall have the right to accept such offer for a period of ninety days after the
later of (i) the date of such Transfer and (ii) if the Corporation does not receive
a notice of such Transfer pursuant to Section 4(e) of this Division B of this
Article FOURTH, the date the Board of Directors determines in good faith that such
Transfer has occurred. Prompt payment of the purchase price shall be made in such
reasonable manner as may be determined by the Corporation. From and after the date
fixed for purchase by the Corporation, and so long as payment of the purchase price
for the Excess Shares to be so purchased shall have been made or duly provided for,
the holder of any Excess Shares so called for purchase shall cease to be entitled
to dividends, distributions, voting rights and other benefits with respect to such
Excess Shares, excepting only the right to payment of the purchase price fixed as
aforesaid. Any dividend or distribution paid to a proposed transferee of Excess
Shares prior to the discovery by the Corporation



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that the Excess Shares have been transferred in violation of Section 4(b) of
this Division B of this Article FOURTH shall be repaid to the Corporation upon
demand. If the foregoing provisions are determined to be void or invalid by virtue
of any legal decision, statute, rule or regulation, then the intended transferee of
such Excess Shares shall be deemed, at the option of the Corporation, to have acted
as agent on behalf of the Corporation in acquiring such Excess Shares and to hold
such Excess Shares on behalf of the Corporation.




     (e) Notice of Restricted Transfer. Any Person who acquires or intends to
acquire shares in violation of Section 4(b) of this Division B of this Article
FOURTH or any Person who is a transferee of Excess Shares shall immediately give
written notice to the Corporation of such event and shall provide to the
Corporation such other information as the Corporation may request in order to
determine the effect, if any, of such Transfer or intended Transfer on the
Corporation’s status as a REIT.




     (f) Owners Required to Provide Information. From and after the date of the
Initial Public Offering:




     (i) every Beneficial Owner of more than 5.0% (or such other
percentage, between 0.5% and 5.0%, as provided in the regulations
promulgated pursuant to the Code) of the outstanding Common Shares of
the Corporation shall, within 30 days after January 1 of each year,
give written notice to the Corporation stating the name and address
of such Beneficial Owner, the number of shares Beneficially Owned,
and description of how such shares are held. Each such Beneficial
Owner shall provide to the Corporation such additional information as
the Corporation may request in order to determine the effect, if any,
of such Beneficial Ownership on the Corporation’s status as a REIT.




     (ii) each Person who is a Beneficial Owner or Constructive Owner
of Common Shares and each Person (including the shareholder of
record) who is holding Common Shares for a Beneficial Owner or
Constructive Owner shall provide to the Corporation such information
that the Corporation may request, in good faith, in order to
determine the Corporation’s status as a REIT.




     (g) Remedies Not Limited. Nothing contained in this Division B of this Article
FOURTH shall limit the authority of the Board of Directors to take such other
action as it deems necessary or advisable to protect the Corporation and the
interests of its shareholders by preservation of the Corporation’s status as a
REIT.




     (h) Ambiguity. In the case of an ambiguity in the application of any of the
provisions of Section 4 of this Division B of this Article FOURTH, including



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any definition contained in Section 4(a), the Board of Directors shall have
the power to determine the application of the provisions of this Section 4 with
respect to any situation based on the facts known to it.




     (i) Modification of Existing Holder Limits. Subject to the provisions of
Section 4(k) of this Division B, the Existing Holder Limits may be modified as
follows:




     (i) Subject to the limitations provided in Section 4(k), any
Existing Holder may Transfer Common Shares to a Person who is already
an Existing Holder up to the number of Common Shares Beneficially
Owned by such transferor Existing Holder in excess of the Ownership
Limit. Any such Transfer will decrease the Existing Holder Limit for
such transferor Existing Holder and increase the Existing Holder
Limit for such transferee Existing Holder by the percentage of the
outstanding Common Shares so Transferred. The transferor Existing
Holder shall give the Board of Directors of the Corporation prior
written notice of any such Transfer.




     (ii) Any grant of a stock option pursuant to a stock option plan
approved by the shareholders of the Corporation shall increase the
Existing Holder Limit for the affected Existing Holder to the maximum
extent possible under Section 4(k) to permit the Beneficial Ownership
of the Common Shares issuable upon the exercise of such stock option.




     (iii) The Board of Directors may reduce the Existing Holder
Limit for any Existing Holder, with the written consent of such
Existing Holder, after any Transfer permitted in this Section 4 by
such Existing Holder to a Person other than an Existing Holder or
after the lapse (without exercise) of a stock option described in
Section 4(i)(ii).




     (iv) Any Common Shares issued to an Existing Holder pursuant to
a dividend reinvestment plan adopted by the Corporation shall
increase the Existing Holder Limit for the Existing Holder to the
maximum extent possible under Section 4(k) to permit the Beneficial
Ownership of such Common Shares.




     (j) Modification of Ownership Limit. Subject to the limitations provided in
Section 4(k) of this Division B, the Board of Directors may from time to time
increase the Ownership Limit.




     (k) Limitations on Modifications. Notwithstanding any other provision of this
Division B of this Article FOURTH:



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     (i) Neither the Ownership Limit nor any Existing Holder Limit
may be increased (nor may any additional Existing Holder Limit be
created) if, after giving effect to such increase (or creation), five
Beneficial Owners of Common Shares (including all of the then
Existing Holders) could Beneficially Own, in the aggregate, more than
49.6% of the outstanding Common Shares.




     (ii) Prior to the modification of any Existing Holder Limit or
Ownership Limit pursuant to Section 4(i) or Section 4(j) of this
Division B of this Article FOURTH, the Board of Directors of the
Corporation may require such opinions of counsel, affidavits,
undertakings or agreements as it may deem necessary or advisable in
order to determine or ensure the Corporation’s status as a REIT.




     (iii) No Existing Holder Limit shall be reduced to a percentage
which is less than the Ownership Limit.




     (iv) The Ownership Limit may not be increased to a percentage
which is greater than 9.8%.




     (v) The Related Party Limit may not be increased to a percentage
which is greater than 9.8%.




     (l) Exceptions.




     (i) The Board of Directors, with a ruling from the Internal
Revenue Service or an opinion of counsel, may exempt a Person from
the Ownership Limits or the Existing Holder Limits, as the case may
be, if such Person is not an individual for purposes of Section
542(a)(2) of the Code and the Board of Directors obtains such
representations and undertakings from such Person as are reasonably
necessary to ascertain that no individual’s Beneficial Ownership of
such Common Shares will violate the Ownership Limit or the applicable
Existing Holder Limit, as the case may be, and agrees that any
violation or attempted violation will result in such Common Shares in
excess of 5.0% of the outstanding Common Shares being deemed to be
Excess Shares and subject to repurchase by the Corporation as set
forth in Section 4(d) of this Division B of this Article FOURTH.




     (ii) The Board of Directors, with a ruling from the Internal
Revenue Service or an opinion of counsel, may exempt a Person from
the limitation on such Person Constructively Owning Common Shares in
excess of the Related Party Limit if such Person does not own and
represents that it will not own, directly or constructively (by
virtue of the application of Section 318 of the



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Code, as modified by Section 856(d)(5) of the Code), more than a
9.9% interest (as set forth in Section 856(d)(2)(B) in a tenant of
any real property owned or leased by the Corporation, and the
Corporation obtains such representations and undertakings from such
Person as are reasonably necessary to ascertain this fact and agrees
that any violation or attempted violation will result in such Common
Shares in excess of 9.8% being deemed to be Excess Shares and subject
to repurchase by the Corporation as set forth in Section 4(d) of this
Division B of this Article FOURTH.




     Section 5. Legend. Each certificate for Common Shares shall bear the following legend:




     “The Common Shares represented by this certificate are subject to restrictions
on transfer for the purpose of the Corporation’s maintenance of its status as a Real
Estate Investment Trust under the Internal Revenue Code of 1986, as amended.
Subject to certain provisions of the Corporation’s Articles of Incorporation, no
Person may Beneficially Own Common Shares in excess of 5.0% of the outstanding
Common Shares of the Corporation (unless such Person is an Existing Holder) and no
Person (other than an Existing Holder who Constructively Owns in excess of 9.8% of
the Common Shares immediately following the consummation of the Initial Public
Offering) may Constructively Own Common Shares in excess of 9.8% of the outstanding
Common Shares of the Corporation. Any Person who attempts to Beneficially Own or
Constructively Own Common Shares in excess of the above limitations must immediately
notify the Corporation. All capitalized items in this legend have the meanings
defined in the Corporation’s Articles of Incorporation, a copy of which, including
the restrictions on transfer, will be sent without charge to each shareholder who so
requests. If the restrictions on transfer are violated, certain of the Common
Shares represented may be subject to repurchase by the Corporation on the terms and
conditions set forth in the Corporation’s Articles of Incorporation.”




     Section 6. Securities Exchange Transactions. Notwithstanding any provision contained
herein to the contrary, nothing in these Amended and Restated Articles of Incorporation
shall preclude the settlement of any transaction entered into through the facilities of the
New York Stock Exchange.



          FIFTH: At all times following the consummation of the Initial Public Offering (as defined in
Article FOURTH), at least a majority of the members of the Board of Directors shall, except during
the period of a vacancy or vacancies therein, be Independent Directors. An “Independent Director”
shall mean a person who is not (i) employed by the Corporation or (ii) an “affiliate” (as defined
in Rule 405 under the Securities Act of 1933, as amended) of (A) any entity which is part of the
Developers Diversified Group, including, without limitation, Developers Diversified Limited
Partnership, an Ohio limited partnership, Developers Diversified, Ltd., an Ohio limited
partnership, W & M Properties, an Ohio general partnership, W & Z Properties, Ltd., an Ohio limited
partnership, and DE Properties Corporation,




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an Ohio corporation, or (B) any partnership which is an affiliate (as defined above) of any
entity listed in clause (A) of this Article FIFTH.




          SIXTH: No holder of shares of the corporation of any class shall be entitled as such, as a
matter of right, to subscribe for or purchase shares of any class, now or hereafter authorized, or
to subscribe for or purchase securities convertible into or exchangeable for shares of the
corporation or to which shall be attached or appertain any warrants or rights entitling the holder
thereof to subscribe for or purchase shares, except such rights of subscription or purchase, if
any, for such considerations and upon such terms and conditions as its Board of Directors from time
to time may determine.




          SEVENTH: Notwithstanding any provision of Sections 1701.01 to 1701.98, inclusive, of the Ohio
Revised Code, or any successor statutes now or hereafter in force, requiring for the authorization
or taking of any action the vote or consent of the holders of shares entitling them to exercise
two-thirds or any other proportion of the voting power of the corporation or of any class or
classes of shares thereof, such action, unless otherwise expressly required by law or these
Articles of Incorporation, may be authorized or taken by the vote or consent of the holders of
shares entitling them to exercise a majority of the voting power of the corporation or of such
class or classes of shares thereof.




          Except as provided in the Company’s code of regulations with respect to the election of a
director to fill a vacancy in the Board of Directors, each director shall be elected by the vote of
the majority of the votes cast with respect to the director at any shareholder meeting held for the
election of directors at which a quorum is present; provided, however, that if as of the date that
is ten days in advance of the date the Company files its definitive proxy statement (regardless of
whether or not thereafter revised or supplemented) with the Securities and Exchange Commission with
respect to a shareholder meeting the number of nominees for election as a director is greater than
the number of directors to be elected, then the directors shall be elected at the meeting by the
vote of a plurality of the shares represented in person or by proxy at that meeting and entitled to
vote on the election of directors. For purposes of this Section, a majority of the votes cast means
the number of shares voted “for” a director exceeds the number of votes cast “against” the
director. Broker non-votes and abstentions will not be considered votes cast at the shareholder
meeting and will be excluded in determining the number of votes cast at the shareholder meeting. 




          EIGHTH: To the extent permitted by law, the corporation, by action of its Board of Directors,
may purchase or otherwise acquire shares of any class issued by it at such times, for such
consideration and upon such terms and conditions as its Board of Directors may determine.




          NINTH: The provisions of Chapter 1701.831 of the Ohio Revised Code shall not apply to the
Corporation.




          TENTH: The provisions of Chapter 1707.043 of the Ohio Revised Code shall not apply to the
Corporation.




          ELEVENTH: If any provision (or portion thereof) of these Articles of Incorporation shall be
found to be invalid, prohibited, or unenforceable for any reason, the




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remaining provisions (or portions thereof) of these Articles of Incorporation shall be deemed
to remain in full force and effect, and shall be construed as if such invalid, prohibited, or
unenforceable provision had been stricken herefrom or otherwise rendered inapplicable, it being the
intent of the Corporation and its shareholders that each such remaining provision (or portion
thereof) of these Articles of Incorporation remain, to the fullest extent permitted by law,
applicable and enforceable as to all shareholders, notwithstanding any such finding.




          TWELFTH: The Corporation reserves the right to amend, alter, change or repeal any provision
contained in these Articles of Incorporation, in the manner now or hereafter prescribed by statute,
and all rights conferred upon shareholders herein are granted subject to this reservation.




          THIRTEENTH: These Second Amended and Restated Articles of Incorporation shall take the place
of and supersede the Corporation’s existing Amended and Restated Articles of Incorporation, as
amended.





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