**Exhibit 3.1**

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**SECOND AMENDEDAND RESTATEDDECLARATION OF TRUSTOFINNSUITES HOSPITALITY TRUST**

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Adopted June 16, 1998

 

 

Amended July 12, 1999

 

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**SECOND AMENDEDAND RESTATEDDECLARATION OF TRUSTOFINNSUITES HOSPITALITY TRUST**

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This Second Amended and RestatedDeclaration of Trust made as of this day of June, 1998 by James F. Wirth, MarcE. Berg, Steve Robson, Gregory D. Bruhn, Lee J. Flory and Edward G. Hill (suchpersons, so long as they shall continue in office in accordance with the termsof this Declaration of Trust, and all other persons who at the time in questionhave been duly elected or appointed as trustees in accordance with theprovisions of this Declaration of Trust and are then in office, are hereinaftertogether called the “Trustees”),

 

**W I T N E S S ET H:**

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WHEREAS, this instrument amends andrestates that certain First Amended and Restated Declaration of Trust madeJune 11, 1971 by James H. Berick, Chester F. Collier, Glenn Golenberg,Sidney S. Hein, Alvin M. Kendis, Frank L. Kennard, Alan M. Krause, AlfredLerner, Maurice Saltzman, A. A. Sommer Sr. and Irving I. Shore (the “OriginalTrustees”), which Declaration of Trust is hereby amended and restated in itsentirety pursuant to Section 13.1 thereof to read as hereinafter provided;and

 

WHEREAS, the Original Trusteesformed an unincorporated association in the form of a business trust, formerlyknown as Realty ReFund Trust, which trust has qualified as a “real estateinvestment trust” under the REIT Provisions of the Internal Revenue Code;

 

NOW,THEREFORE, the Trustees hereby declare that they will hold all property of every type and description which they are acquiring or mayhereafter acquire as such Trustees, together with the proceeds, rents andincome thereof and therefrom, in trust, to manage and dispose of the same forthe benefit of the holders of record from time to time of the certificates forShares issued and to be issued hereunder and in the manner and subject to theprovisions hereof, to wit:

 

# ARTICLE I

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# THE TRUST

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## 1.1                                 Name.  The name of the trust shall be “InnSuitesHospitality Trust”  (hereinafter calledthe “Trust”) and so far as may be practicable the Trustees shall conduct theTrust’s activities, execute all documents and sue or be sued under that name,which name (and the word “Trust” wherever used in this Declaration of Trust,except where the context otherwise requires) shall refer to the Trustees intheir capacity as Trustees, and not individually or personally, and shall notrefer to the officers, agents, employees or Shareholders of the Trust or ofsuch Trustees. Should the Trustees determine that the use of such name is notpracticable, legal or convenient, they may use such other designation or theymay adopt such other name for the Trust as they deem proper and the Trust mayhold property and conduct its activities under such designation or name.

 

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## 1.2                                 Location.  The Trust may maintain an office inCleveland, Ohio, or such other location within or without the state of Ohio, asthe Trustees may from time to time determine.

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## 1.3                                 Nature of Trust.  The Trust shall be an unincorporatedassociation in the form of a business trust. The Trust is not intended to be, shall not be deemed to be and shall notbe treated as, a general partnership, limited partnership, joint venture, corporationor joint stock company (but nothing herein shall preclude the Trust from beingtaxable as an association under the REIT Provisions of the Internal RevenueCode).  The Shareholders shall bebeneficiaries and their relationship to the Trustees shall be solely in thatcapacity in accordance with the rights conferred upon them hereunder.  The Trust is intended to have the status of a“real estate investment trust” as that term is defined in the REIT Provisionsof the Internal Revenue Code and this Declaration of Trust and all actions ofthe Trustees hereunder shall be construed in accordance with such intent.

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## 1.4                                 Definitions.  As used in the Declaration of Trust, thefollowing terms and the singular or plural thereof, when appropriate, shallhave the following meanings unless the context hereof otherwise requires:

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“Adviser” shall mean any Personappointed, employed or contracted with by the Trustees under the provisions ofSection 3.1 hereof.

 

“Affiliate” shall mean in respectof any Person (the “First Person”), any other Person (a) who directly orindirectly controls, is controlled by or is under common control with the FirstPerson, or (b) who is a director, officer, employee, partner or trustee ofthe First Person, or of which the First Person is a director, officer,employee, partner or trustee, or (c) who directly or indirectlybeneficially owns, controls or holds with power to vote one percent (1%) ormore of the outstanding voting securities of the First Person, or of which theFirst Person directly or indirectly beneficially owns, controls or holds withpower to vote one percent (1%) or more of the outstanding voting securities.

 

“Appraisal” shall mean adetermination of the fair market value, as of the date of the Appraisal, ofReal Property in its existing state or in a state to be created, by any bank,insurance company or other Person which makes appraisals in connection with itslending, investment, syndication, brokerage or servicing activities (whether ornot an Affiliate of the Adviser), or by a disinterested Person having noeconomic interest in the Real Property provided any such Person is, in the solejudgment of the Trustees, properly qualified to make such a determination.

 

“Certificates of Deposit” shallmean evidences of deposits in, or obligations of, banking institutions andsavings institutions which are members of the Federal Deposit InsuranceCorporation or of the Federal Home Loan Bank System.

 

“Commercial Paper” shall meanindebtedness of the Trust evidenced by unsecured promissory notes maturing notmore than 270 days after the date of issue.

 

“Declaration of Trust” shall meanthis Second Amended and Restated Declaration of Trust as amended, restated ormodified from time to time. References in this Declaration of Trust to “Declaration,”“hereof,” “herein” and “hereunder” shall be deemed to refer to the Declaration

 

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of Trustand shall not be limited to the particular text, article orsection in which such words appear.

 

“Equity Investments in RealProperty” shall mean investments in the ownership of, or participations in theownership of, Real Property including the development thereof and any interesttherein other than Mortgage Loans, or of any type of interest in any corporateor other entity principally involved in owning, developing, improving,financing, operating or managing Real Property.

 

“Government Securities” shall meanSecurities which are obligations of, or guaranteed by, the United StatesGovernment, any State or Territory of the United States of America, or anyagency or political subdivision thereof, including, without limitation, allGovernment Securities from time to time constituting qualified real estateinvestment trust assets under the Internal Revenue Code.

 

“Mortgage Loans” shall mean loansevidenced by notes, debentures, bonds and other evidences of indebtedness orobligations, which are negotiable or non-negotiable and which are secured orcollateralized by Mortgages.

 

“Mortgages” shall mean mortgages,deeds of trust or other security interests in Real Property or on rights orinterests, including leasehold interests, in Real Property.

 

“Net Assets” shall mean the TotalAssets of the Trust after deducting therefrom any liabilities of the Trustexcept that depreciable assets shall be included therein at the fair marketvalue of such assets in the judgment of the Trustees.

 

“Non-Recourse Indebtedness” shallmean indebtedness of the Trust incurred in connection with the acquisition ofany asset wherein the liability of the Trust is limited to the asset acquiredand income and proceeds attributable thereto or derived therefrom and whichdoes not represent a general obligation of the Trust.

 

“Person” shall mean and includeindividuals, corporations, limited partnerships, limited liability companies,general partnerships, joint stock companies or associations, joint ventures,associations, companies, trusts, banks, trust companies, land trusts, businesstrusts, or other entities whether or not legal entities and governments andagencies and political subdivisions thereof.

 

“Real Property” shall mean land,rights in land, interests (including, without limitation, air rights andleasehold interests as lessee or lessor), and buildings, structures,improvements, furniture and fixtures located on or used in connection with landand rights in land, or interests therein, but not including Mortgages, MortgageLoans or interests therein.

 

“REIT Provisions of the InternalRevenue Code” shall mean the statutory provisions presently contained in PartII, Subchapter M of Chapter 1, Sections 856 through 858 of theInternal Revenue Code of 1986, as now enacted or hereafter amended, orsuccessor statutes and regulations and rulings promulgated thereunder;provided, however, that any such statute, regulation or ruling enacted orpromulgated after the date hereof which is by its terms applicable to realestate investment trusts in existence on the date hereof only upon the electionof, or failure

 

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to electotherwise by, such trust, shall be applicable to this Trust only if this Trustshall so elect or fail to elect otherwise in accordance with the terms thereof.

 

“Securities” shall mean any stock,shares, voting trust certificates, bonds, debentures, notes, or other evidencesof indebtedness, secured or unsecured, convertible, subordinated or otherwiseor in general any instruments commonly known as “securities” or anycertificates of interest, shares or participations in temporary or interimcertificates for, guarantees of or any right to subscribe to, purchase oracquire any of the foregoing.

 

“Securities of the Trust” shallmean any Securities issued by the Trust.

 

“Shareholders” shall mean as of anyparticular time all holders of record of outstanding Shares at such time.

 

“Shares” shall mean the shares ofbeneficial interest of the Trust as described in Section 6.1.

 

“Short-Term” in relation to loansshall mean loans other than Long-Term or Intermediate-Term loans.

 

“Total Assets of the Trust” shallmean the aggregate appraised value of all of the assets included in the TrustProperty, without deduction for mortgage loans or other security interests towhich such assets are subject or subordinate and before provision fordepreciation, depletion and amortization but after provision for bad debt lossand similar reserves.

 

“Trust Property” shall mean as ofany particular time any and all property, real, personal or otherwise, tangibleor intangible, which is transferred, conveyed or paid to the Trust or Trusteesand all rents, income, profits and gains therefrom and which at such time isowned or held by, or for the account of, the Trust or the Trustees.

 

# ARTICLE II

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# POWERS OF TRUSTEES 

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## 2.1                                 General.  The Trustees shall have, without other orfurther authorization, full, exclusive and absolute power, control andauthority over the Trust Property and over the business of the Trust to thesame extent as if the Trustees were the sole and absolute owners of the TrustProperty and business in their own right, but with such powers of delegation asmay be permitted by this Declaration of Trust.  The Trustees may do and perform such acts and things as in their solejudgment and discretion are necessary and proper for conducting the businessand affairs of the Trust or promoting the interests of the Trust and theShareholders.  The enumeration of anyspecific power or authority herein shall not be construed as limiting theaforesaid power or authority or any specific power or authority.  The Trustees shall have the power to enterinto commitments to make any investment, purchase or acquisition, or toexercise any power authorized by this Declaration of Trust. Such powers of theTrustees may be exercised without order of or resort to any court.

 

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## 2.2                                 Investments.  The Trustees shall have power, for suchconsideration as they may deem proper, to invest in, purchase or otherwiseacquire, for cash or other property or through the issuance of Securities ofthe Trust, and hold or retain for investment full or participating interests ofany type in real, personal or mixed, tangible or intangible, property of anykind wherever located; including, without limitation, the following:  (a) Securities which are secured byMortgages; (b) rents, lease payments or other income from, or the profitsfrom, or the equity or ownership of, Real Property; (c) investmentssecured by the pledge or transfer of Mortgage Loans; and (d) Securities ofevery nature, whether or not secured by Mortgages.

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In the exercise of their powers,the Trustees shall not be limited to investing in obligations maturing beforethe possible termination of the Trust, nor shall the Trustees be limited by anylaw now or hereafter in effect limiting the investments which may be held orretained by trustees or other fiduciaries, but they shall have full authorityand power to make any and all investments within the limitations of thisDeclaration of Trust, that they, in their absolute discretion, shall determine,and without liability for loss, even though such investments shall be of acharacter or an amount not considered proper for the investment of trust fundsor which do not or may not produce income.

 

## 2.3                                 Appraisals.  If the Trustees should at any time purchaseReal Property (other than where such purchase results from a foreclosure orsatisfaction of indebtedness to the Trust or is made in connection with theacquisition of a Mortgage Loan), the consideration paid for such Real Propertyshall be based upon the fair market value of the property as determined by anAppraisal, as determined in the discretion of the Trustees; provided, however,that in the event that such purchase is made from an Affiliate of the Trust orthe Adviser, such Appraisal shall be made by a Person who is not an Affiliateof the Trust or the Adviser.

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## 2.4                                 Legal Title.  Legal title to all the Trust Property shallbe vested in the Trustees as joint tenants and held by and transferred to theTrustees, except that the Trustees shall have power to cause legal title to anyTrust Property to be held by or in the name of one or more of the Trustees withsuitable reference to their trustee status, or in the name of the Trust, or inthe name of any other Person as nominee, on such terms, in such manner, andwith such powers as the Trustees may determine, so long as in their judgmentthe interest of the Trust is adequately protected.

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The right, title and interest ofthe Trustees in and to the Trust Property shall vest automatically in all personswho may hereafter become Trustees upon their due election and qualificationwithout any further act.  Upon theresignation, removal or death of a Trustee he (and in the event of his death,his estate) shall automatically cease to have any right, title or interest inor to any of the Trust Property as a Trustee, and such right, title andinterest of such Trustee in and to the Trust Property shall vest automaticallyin the remaining Trustees without any further act.  Such vesting and cessation of title shall beeffective whether or not conveyancing documents have been executed anddelivered.

 

## 2.5                                 Disposition, Renting, etc. of Assets.  The Trustees shallhave power to sell, grant security interests in, otherwise encumber, lease,exchange or otherwise dispose of or grant options in respect of any and allTrust Property free and clear of any and all trusts, at public or private sale,for cash or on terms, without advertisement, and subject to such restrictions,

 

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## stipulations, agreements andreservations as they shall deem proper, including the power to take backmortgages to secure the whole or any part of the purchase price of any of theTrust Property sold or transferred by them, and to execute and deliver any deedor other instrument in connection with the foregoing.  The Trustees shall also have the power to:

 

### (a)                                  rent, lease or hirefrom others or to others, for terms which may extend beyond the termination ofthis Declaration of Trust, any property or rights to property, real, personalor mixed, tangible or intangible, and to own, manage, use and hold suchproperty and such rights;

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### (b)                                 subdivide or improveReal Property and tear down, alter, repair or make improvements thereon andgrant easements in relation thereto;

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### (c)                                  give consents and makecontracts relating to Trust Property or its use;

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### (d)                                 release or dedicateany Trust Property; and

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### (e)                                  develop, operate,pool, unitize, grant production payments out of or lease or otherwise disposeof oil, gas and other mineral properties and rights.

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## 2.6                                 Financings; Issuance of Securities; Facsimiles.  The Trustees shallhave power to lend money, whether secured or unsecured, to borrow or in anyother manner raise such sum or sums of money or other property as they shalldetermine, in any amount and in any manner and on any terms, and to evidencethe same by Securities which may mature at any time or times even beyond thepossible date of termination of the Trust, to reacquire any such Securities, toenter into other contracts on behalf of the Trust and to execute and deliverany Mortgage, pledge or other instrument to secure any such Securities or otherobligations or contracts.  Any suchSecurities, instruments or other obligations of the Trust may, at the discretionof the Trustees, without vote of the Shareholders, be convertible orexercisable into Shares at such time and on such terms as the Trustees mayprescribe.

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TheTrustees shall have power to issue any type of Securities of the Trust, withoutvote of or other action by the Shareholders, to such Persons for such cash,property, services, expenses or other consideration (including Securitiesissued or created by, or interests in, any Person) at such time or times and insuch amounts and in such manner and on such terms as the Trustees may deemadvisable and to list any of the foregoing Securities of the Trust or anydepositary receipts representing such Securities on any securities exchange andto purchase or otherwise acquire, hold, cancel, reissue, sell and transfer anysuch Securities of the Trust or any depositary receipts representing suchSecurities.  The Trustees may authorizethe use of facsimile signatures and/or a facsimile seal of the Trust onSecurities of the Trust or any depositary receipts representing suchSecurities, provided that where facsimile signatures are so used, one of theauthorized signatures be manual or the Securities or any such depositaryreceipts be manually countersigned or authenticated (except in respect of anytype of Security in respect of which then current commercial practice does notrequire manual countersignature or manual authentication) by a transfer agentor registrar or by an authenticating agent or trustee or similar Person.  In case any Person who shall have signed (orwhose facsimile signature shall appear on) Securities of the Trust or any suchdepositary receipts shall have ceased to occupy the office or perform the

 

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function in respect of which such signature was authorizedbefore such Securities or any such depositary receipts shall have been actuallyissued, such Securitiesor any such depositary receipts may nevertheless be issued with the same effectas though such Person had not ceased to occupy such office or perform suchfunction.

 

## 2.7                                 Taxes.  The Trustees shall have power to pay alltaxes or assessments, of whatever kind or nature, imposed upon or against theTrust or the Trustees in connection with the Trust Property or upon or againstthe Trust Property or income or any part thereof, to settle and compromisedisputed tax liabilities, and for the foregoing purposes to make such returnsand do all such other acts and things as may be deemed by the Trusteesnecessary or desirable.

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## 2.8                                 Rights as Holder of Mortgages and Securities.  The Trustees shallhave power to exercise all the rights, powers and privileges appertaining tothe ownership of all or any Mortgages or Securities forming part of the TrustProperty to the same extent that any individual might, and, without limitingthe generality of the foregoing, to vote or give any consent, request or noticeor waive any notice either in person or by proxy or power of attorney formeetings or action generally or for any particular meetings or action, and mayinclude the exercise of discretionary powers.

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## 2.9                                 Delegation; Investment Committees.  The Trustees shallhave power, consistent with their continuing exclusive authority over themanagement of the Trust, the conduct of its affairs, and the management and dispositionof Trust Property, to delegate from time to time to such one or more of theirnumber or to officers, employees or agents of the Trust the doing of suchthings and the execution of such deeds or other instruments either in the nameof the Trust or the names of the Trustees or as their attorney or attorneys orotherwise as the Trustees may from time to time deem expedient, except that(i) powers of the Trustees relating to the approval of Real Property andMortgage investments for the Trust may be delegated only to committees(hereinafter called “Investment Committees”) consisting of two or moreTrustees, a majority of whom (subject to Section 3.3 hereof) shall not beAffiliates of the Adviser, and (ii) powers of the Trustees relating to theapproval of transactions pursuant to Section 2.17 hereof may not bedelegated to any person, attorney or committee.

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## 2.10                           Collection.  The Trustees shall have power to collect, suefor, receive and receipt for all sums of money or other property due to theTrust, to consent to extensions of the time for payment, or to the renewal, ofany Securities or obligations; to engage or intervene in, prosecute, defend,compound, compromise, abandon or adjust by arbitration or otherwise anyactions, suits, proceedings, disputes, claims, demands or things relating tothe Trust Property; to foreclose a Mortgage or other Security securing anynotes, debentures, bonds, obligations or contracts, by virtue of which any sumsof money are owed to the Trust; to exercise any power of sale held by them, andto convey good title thereunder free of any and all trusts, and, in connectionwith any such foreclosure or sale, to purchase or otherwise acquire title toany property; to be parties to reorganizations and to transfer to and deposit withany corporation, committee, voting trustee or other Person any Securities orobligations of any corporation, trust, association or other organization, theSecurities of which form a part of the Trust Property, for the purpose of anyreorganization of any such corporation, trust, association or otherorganization, or otherwise to participate in any arrangement for enforcing orprotecting the interests of the Trustees as the owners or holders of suchSecurities or obligations and to pay any assessment levied in

 

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## connection with such reorganizationor arrangement; to extend the time with or without security for the payment ordelivery of any debts or property and to execute and enter into releases,agreements and other instruments; and to pay or satisfy any debts or claimsupon any evidence that the Trustees shall deem sufficient.

 

## 2.11                           Expenses.  The Trustees shall have power to incur andpay any charges or expenses which in the opinion of the Trustees are necessaryor incidental to or proper for carrying out any of the purposes of thisDeclaration of Trust, including specifically without limitation the expensesitemized in subsections (a) through (h) of Section 3.2 and toreimburse others for the payment therefor, and to pay appropriate compensationor fees from the funds of the Trust to themselves as Trustees and to Personswith whom the Trust has contracted or transacted business.  The Trustees shall fix the compensation ofall officers and Trustees.  The Trusteesmay be paid reasonable compensation for their general services as Trustees andofficers hereunder, and the Trustees may pay themselves or any one or more ofthemselves such compensation for special services, including legal services, asthey in good faith may deem reasonable, and reimbursement for expensesreasonably incurred by themselves or any one or more of themselves on behalf ofthe Trust.

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## 2.12                           Guaranties.  The Trustees shall have power to endorse orguarantee the payment of any notes or other obligations of any Person; to makecontracts of guaranty or suretyship, or otherwise assume liability for paymentthereof; and to mortgage and pledge the Trust Property or any part thereof tosecure any of or all such obligations.

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## 2.13                           Deposits.  The Trustees shall have power to deposit anymoneys or Securities included in the Trust Property with any one or more banks,trust companies or other banking institutions, including the Adviser, anyAffiliate of the Adviser, or any Affiliate of any Trustee, whether or not suchdeposits will draw interest. Such deposits are to be subject to withdrawal insuch manner as the Trustees may determine, and the Trustees shall have noresponsibility for any loss which may occur by reason of the failure of thebank, trust company, savings and loan association or other banking institutionwith whom the moneys or Securities have been deposited.

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## 2.14                           Allocation.  The Trustees shall have power to determinewhether moneys or other assets received by the Trust shall be charged orcredited to income or capital or allocated between income and capital,including the power to amortize or fail to amortize any part or all of anypremium or discount, to treat any part or all the profit resulting from thematurity or sale of any asset, whether purchased at a premium or at a discount,as income or capital or apportion the same between income and capital, toapportion the sale price of any asset between income and capital, and todetermine in what manner any expenses or disbursements are to be borne asbetween income and capital, whether or not in the absence of the power andauthority conferred by this Section 2.14 such assets would be regarded asincome or as capital or such expense or disbursement would be charged to incomeor to capital; to treat any dividend or other distribution on any investment asincome or capital or apportion the same between income and capital; to provideor fail to provide reserves for depreciation, amortization or obsolescence inrespect of any Trust Property in such amounts and by such methods and for suchpurposes as they shall determine, and to allocate to the shares of beneficialinterest account less than all of the

 

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## consideration received for Shares(but not less than the par value thereof, if any) and to allocate the balancethereof to paid-in capital, all as the Trustees may reasonably deem proper.

 

## 2.15                           Valuation.  The Trustees shall have power to determineconclusively the value of any of the Trust Property and of any services,Securities, assets or other consideration hereafter to be acquired or disposedof by the Trust, and to revalue the Trust Property.

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## 2.16                           Fiscal Year.  The Trustees shall have power to determinethe fiscal year of the Trust and the method or form in which its accounts shallbe kept and from time to time to change the fiscal year or method or form ofaccounts.

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## 2.17                           Concerning the Trust and Certain Affiliates.

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### (a)                                  The Trust shall not,directly or indirectly, lend any of its property to, purchase or otherwiseacquire any property from, or sell or otherwise transfer any property to(i) the Adviser, (ii) any Trustee (in his individual capacity),officer, director or employee of the Trust or the Adviser, (iii) anyPerson holding beneficially, directly or indirectly, 1% or more of theoutstanding capital stock or other equity interests of the Adviser, and(iv) any Person controlling, controlled by or under common control withany of the foregoing Persons unless such transaction (1) has been approved,after disclosure of such relationship, by a majority of the Trustees who arenot Affiliates of any such Person (other than the Trust) who is a party to thetransaction; (2) is, in the opinion of such unaffiliated Trustees, onterms fair and reasonable to the Trust and its Shareholders; and (3) is,in the opinion of such unaffiliated Trustees, on terms at least favorable tothe Trust and its Shareholders as the terms for comparable transactions ofwhich the Trustees have knowledge with an entity not an Affiliate of theTrust.  All commissions or remunerationreceived by any such person in connection with any such transaction shall bededucted from the fee paid to the Adviser. The price of any Mortgage Loan purchased in such a transaction may notexceed the fair market value thereof determined on the basis of prevailinginterest rates for similar loans.  Theprice of any other property purchased in such transaction may not exceed thefair market value thereof as determined by an independent appraisal.  The simultaneous acquisition by the Trust andany such Affiliate of participations in a loan or other investment shall not bedeemed to constitute the purchase or sale of property by one or the other.

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### (b)                                 Notwithstandinganything in this Section 2.17 to the contrary, there shall be norestriction on transactions between the Trust and any Person named inSubsection (a) of this Section 2.17 with regard to (i) theinitial investments of the Trust which are or may be described in a RegistrationStatement filed under the Securities Act of 1933 in respect of the first publicoffering of Securities of the Trust or (ii) purchases or sales ofSecurities of the Trust on the same terms then being offered to all holders ofany class of Securities of the Trust or to the public.

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### (c)                                  Any Trustee orofficer, employee or agent of the Trust may acquire, own, hold and dispose ofSecurities of the Trust, for his individual account, and may exercise allrights of a holder of such Securities to the same extent and in the same manneras if he were not such a Trustee or officer, employee or agent.

 

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### (d)                                 The Trust shall not,in dealing with any Trustee, investment adviser, officer or employee of theTrust, enter into any transaction contrary to the obligations imposed upon suchpersons under the Declaration of Trust by courts in Ohio having equity power.

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### (e)                                  The Trust may makeConstruction Loans or other short-term investments where an Affiliate has acommitment to provide the long-term financing, and may make investments in RealProperty on which an Affiliate has an existing mortgage or otherencumbrance.  The foregoing provisions ofthis Section 2.17 shall in no way affect contracts for the furnishing ofservices to or by the Trust, nor shall such provisions affect any othertransactions, contracts, acts or dealings (not prohibited by such foregoingprovisions) between the Trust and any Affiliate of the Trust or in which anyAffiliate has an interest disclosed to the Trust; and no Trustee, officer,employee or agent of the Trust shall have any liability as a result of enteringinto any purchase or loan, contract for services, or other transaction,contract, act or dealing not prohibited by such foregoing provisions.  However, any Person who (i) is anofficer, director or employee of the Adviser, (ii) holds beneficially,directly or indirectly, 1% or more of the outstanding capital stock or otherequity interests of the Adviser, (iii) is an officer, director, employee,partner or trustee of a corporation, partnership or trust which either holdsbeneficially, directly or indirectly, 1% or more of the outstanding capitalstock or other equity interests of the Adviser or controls, is controlled by,or under common control with, the Adviser, or (iv) controls, is controlledby, or under common control with the Adviser, shall offer the Trust a right offirst refusal to the full extent of any investment opportunity available tosuch person which is consistent with the investment policies of the Trust.

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### (f)                                    The Trustees shall usetheir best efforts to obtain through the Adviser or other Persons a continuingand suitable investment program, consistent with the investment policies andobjectives of the Trust, and the Trustees shall be responsible for reviewingand approving or rejecting investment opportunities for the Trust.  Any Trustee or officer, employee, or agent ofthe Trust may, in his personal capacity, or in a capacity of trustee, officer,director, stockholder, partner, member, adviser or employee of any Person, havebusiness interests and engage in business activities in addition to thoserelating to the Trust, which interests and activities may be similar to thoseof the Trust and include the acquisition, syndication, holding, management,operation or disposition, for his own account or for the account of suchPerson, of interests in Mortgages, interests in Real Property, or interests inPersons engaged in the real estate business subject to the provisions ofsubsection (c) of this Section 2.17, and each Trustee, officer,employee and agent of the Trust shall be free of any obligation to present tothe Trust any investment opportunity which comes to him in any capacity otherthan solely as Trustee, officer, employee or agent of the Trust, even if suchopportunity is of a character which, if presented to the Trust, could be takenby the Trust.  Notwithstanding theforegoing, no Trustee, Adviser, officer, employee or agent of the Trust shallcompete with the Trust in (i) any transaction in which the Trust isengaged or (ii) any proposed transaction which has been presented to theTrustees in writing for their consideration to be acted upon by the Trust, andwhich has not been rejected by the affirmative vote of a majority of the Trusteesnot interested in such proposed transaction. Subject to the provisions of Article III hereof, any Trustee orofficer, employee or agent of the Trust may be

 

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### interested as trustee,officer, director, stockholder, partner, member, adviser or employee of, orotherwise have a direct or indirect interest in, any Person who may be engagedto render advice or services to the Trust, and may receive compensation fromsuch Person as well as compensation as Trustee, officer, employee or agent ofthe Trust or otherwise hereunder.  Noneof the activities referred to in this paragraph shall be deemed to conflictwith his duties and powers as Trustee, officer, employee or agent of theTrust.  To the extent that any other provisionof this Declaration of Trust conflicts or is otherwise contrary to theprovisions of this Section 2.17, the provisions of this Section shallbe deemed controlling.

 

## 2.18                           FHA Qualification.  If the Trust shall be an “FHA ApprovedMortgagee”, the Trustees shall have power to sell or otherwise dispose of anyFHA loan or an interest therein with the Trust owns in accordance with theprovisions of the National Housing Act of 1934, as amended, and the regulationspromulgated thereunder.  The Trusteesshall have power to execute on behalf of the Trust, in connection with anyproject in which FHA has insured the indebtedness, in whole or in part, any andall Mortgages and other agreements, documents and forms which may be requiredby FHA in connection with the approval by FHA of the transfer of physicalassets from any entity to the Trustees or the insurance by FHA of anyindebtedness on any project as to which the Trustees are or shall become ownerspursuant to this Declaration of Trust, and the provisions of any such agreementshall be binding upon the Trust notwithstanding any conflict with or limitationof this Declaration of Trust.

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## 2.19                           Power to Contract.  Subject to the provisions ofSections 2.9 and 3.1 hereof in respect of delegation of authority by theTrustees, the Trustees shall have power to appoint, employ or contract with anyPerson (including one or more of themselves and any Person of which one or moreof them may be an Affiliate, subject to the applicable requirements ofSection 2.17 hereof) as the Trustees may deem necessary or desirable forthe transaction of the business of the Trust including any Person who, underthe supervision of the Trustees, may, among other things: serve as the Trust’sinvestment adviser and consultant in connection with policy decisions made bythe Trustees; furnish reports to the Trustees and provide research, economicand statistical data in connection with the Trust’s investments; act asconsultant, accountant, mortgage loan originator or servicer, correspondent, lender,technical adviser, attorney, broker, property manager, underwriter, corporatefiduciary, escrow agent, depositary, custodian or agent for collection, insureror insurance agent, transfer agent or registrar or warrant agent, or payingagent for Securities of the Trust, or in any other capacity deemed by theTrustees necessary or desirable; investigate, select, and, on behalf of theTrust, conduct relations with Persons acting in such capacities and payappropriate fees to, and enter into appropriate contracts with, or employ, orretain services performed or to be performed by, any of them in connection withthe investments acquired, sold, or otherwise disposed of, or committed,negotiated, or contemplated to be acquired, sold or otherwise disposed of; substituteany other Person for any such Person; act as attorney-in-fact or agent in thepurchase or sale or other disposition of investments and in the handling,prosecuting or settling of any claims of the Trust, including the foreclosureor other enforcement of any mortgage or other lien or other security securinginvestments and assist in the performance of such ministerial functionsnecessary in the management of the Trust as may be agreed upon with theTrustees or officers of the Trust.

 

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## 2.20                           Organization of Business Entities.  The Trustees shallhave power to cause to be organized or assist in organizing any Person underthe laws of any jurisdiction to acquire the Trust Property or any part of partsthereof or to carry on any business in which the Trust shall directly orindirectly have any interest, and to cause the Trust to merge with such Personor any existing Person or to sell, rent, lease, hire, convey, negotiate,assign, exchange or transfer the Trust Property or any part or parts thereof toor with any such Person or any existing Person in exchange for the Securitiesthereof or otherwise, and to lend money to, subscribe for the Securities of,and enter into any contracts with, any such Person in which the Trust holds oris about to acquire Securities or any other interest.

##  

## 2.21                           Associations.  The Trustees shall have power to cause theTrust to enter into joint ventures, general or limited partnerships, limitedliability companies and any other combinations or associations.

##  

## 2.22                           Insurance.  The Trustees shall have power to purchase andpay for entirely out of Trust Property insurance policies insuring theShareholders, Trustees, officers, employees, agents, investment advisers,including the Adviser, or independent contractors of the Trust individuallyagainst all claims and liabilities of every nature arising by reason ofholding, being or having held any such office or position, or by reason of anyaction alleged to have been taken or omitted by any such Person as Shareholder,Trustee, officer, employee, agent, investment adviser, or independentcontractor including any action taken or omitted that may be determined toconstitute negligence, whether or not the Trust would have the power to indemnifysuch Person against such liability.

##  

## 2.23                           Pension and Other Plans.  The Trustees shall have power to pay pensionsfor faithful service, as deemed appropriate by the Trustees, and to adopt,establish and carry out pension, profit-sharing, Share bonus, Share purchase,savings, thrift and other retirement, incentive and benefit plans, dividendreinvestment plans, trusts and provisions, including the purchasing of lifeinsurance and annuity contracts as a means of providing such retirement andother benefits, for any or all of the Trustees, officers, employees and agentsof the Trust subject to Section 4.3(k) hereof.

##  

## 2.24                           Reorganizations.  The Trustees shall have power to participatein reorganization, liquidation or bankruptcy proceedings in respect of anyPerson and in connection therewith to delegate discretionary powers to anyreorganization, protective or similar committees.

##  

## 2.25                           Seal.  The Trustees shall have power to adopt anduse a seal for the Trust, but the seal shall not be necessary to be placed on,and its absence shall not impair the validity of, any document, instrument orother paper executed and delivered by or on behalf of the Trust.

##  

## 2.26                           Charitable Contributions.  The Trustees shall have power to makedonations, irrespective of benefit to the Trust, for the public welfare or forcommunity fund, hospital, charitable, religious, educational, scientific, civicor similar purpose, and in time of war or other national emergency in aidthereof.

##  

## 2.27                           Indemnification.  In addition to the mandatory indemnificationprovided for in Section 5.3 hereof, the Trustees shall have power to theextent permitted by law to indemnify or

 

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## enter into agreements in respect ofindemnification with any Person with whom the Trust has dealings, including,without limitation, any investment adviser, including the Adviser, orindependent contractor, to such extent as the Trustees shall determine.

 

## 2.28                           Remedies.  Notwithstanding any provision in thisDeclaration of Trust, when the Trustees deem that there is a significant riskthat an obligor to the Trust may default or is in default under the terms ofany obligation to the Trust, the Trustees shall have power to pursue anyremedies permitted by law which, in their sole judgment, are in the interestsof the Trust, and the Trustees shall have the power to enter into anyinvestment, commitment or obligation of the Trust resulting from the pursuit ofsuch remedies or necessary or desirable to dispose of property acquired in thepursuit of such remedies.

##  

## 2.29                           Further Powers.  The Trustees shall have power to do all suchother matters and things and execute all such instruments as they deemnecessary, proper or desirable in order to carry out, promote or advance theinterests of the Trust although such matters or things are not hereinspecifically mentioned.  Anydetermination as to what is in the interests of the Trust made by the Trusteesin good faith shall be conclusive. In construing the provisions of thisDeclaration of Trust, the presumption shall be in favor of a grant of power tothe Trustees.  The Trustees will not berequired to obtain any court order to deal with the Trust Property.

##  

# ARTICLE III

#  

# ADVISER

#  

## 3.1                                 Appointment.  The Trustees are responsible for the generalinvestment policy of the Trust and for the general supervision of the businessof the Trust conducted by officers, agents, employees, investment advisers orindependent contractors of the Trust. However, the Trustees are not required personally to conduct all of thebusiness of the Trust and consistent with their ultimate responsibility asstated herein, the Trustees may appoint, employ or contract with an Adviser,and may grant or delegate such authority to the Adviser (pursuant to the termsof Section 2.19 hereof) or to any other Person the services of whom areobtained by the Adviser, as the Trustees may, in their sole discretion, deem tobe necessary or desirable, without regard to whether such authority is normallygranted or delegated by trustees.

##  

## 3.2                                 Provisions of Agreement.  The Trustees shall not enter into anyagreement with the Adviser pursuant to the provisions of Section 3.1hereof unless (i) such agreement has an initial term of not more than oneyear (except that any such agreement entered into prior to the first publicoffering of Securities of the Trust may have an initial term of not more thantwo years), (ii) its renewal or extension provisions, if any, shallprovide for renewals or extension of not more than one year in length, (iii) suchagreement can be terminated upon no more than 60 days’ written notice from theTrust, upon either a vote of a majority of the Trustees who are not Affiliatesof the Adviser, or by a vote of the holders of not less than a majority of theShares then outstanding and entitled to vote, at a meeting duly called for suchpurpose and (iv) such agreement shall limit the fees realized by theAdviser by requiring that the Adviser must refund to the Trust at leastannually the amount, if any, by which the aggregate expenses of the Trust forsuch year (excluding (a) the cost of borrowed money; (b) taxes onincome and real property and all other taxes applicable to the Trust;(c) legal, auditing, underwriting, transfer agent’s, warrant

 

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## agent’s, registrar’s and indenturetrustee’s and other fees and listing, registration, printing and other expensesand taxes incurred in connection with the issuance, distribution, transfer,registration and stock exchange listing of the Trust’s securities;(d) fees and expenses paid to independent contractors employed by or onbehalf of the Trust; (e) costs of insurance; (f) expenses of organizing orterminating the Trust; (g) all expenses connected with distributions andcommunications to holders of securities of the Trust and the other bookkeepingand clerical work necessary in maintaining relations with holders ofsecurities, including the cost of printing and mailing checks, certificates forsecurities, proxy solicitation materials and reports to such holders; and (h)expenses directly connected with the acquisition, disposition and ownership ofmortgage loans or other property, including, to the extent not paid byborrowers from the Trust, the costs of appraisal, legal services, brokerage andsales commissions, as well as the costs of foreclosure, maintenance, repair andimprovement of property), exceed the lesser of:

 

### (a)                                  l 1/2% of the NetAssets of the Trust, including undisbursed portions of closed loans and otherclosed investments of the Trust for such Year or

###  

### (b)                                 25% of the Trust’s netincome for such year, excluding provision for realized capital gains and lossesfrom the disposition of assets of the Trust and before deducting regular andincentive advisory fees and depreciation, depletion and amortization.

###  

## 3.3                                 Independence of Trustees.  After the first public offering of Securitiesof the Trust not more than 49% of the total number of Trustees or of the totalnumber of members of any Investment Committee may be Affiliates of the Adviser;provided, however, that if at any time the percentage of all Trustees or ofmembers of such Investment Committee who are Affiliates of the Adviser becomesmore than 49% of the total number of Trustees or members of such InvestmentCommittee then in office, because of the death, resignation, removal or changein affiliation of a Trustee or member of such Investment Committee who is notsuch an Affiliate, such requirement shall not be applicable for a period of 60days, during which time a majority of all the Trustees then in office shallappoint a sufficient number of other individuals as Trustees or as members ofsuch Investment Committee so that there is again not more than 49% of the totalnumber of all Trustees or members of such Investment Committee then in officewho are Affiliates of the Adviser.  TheTrustees shall at all times endeavor to comply with such requirement, butfailure so to comply shall not affect the validity or effectiveness of any actionof the Trustees or of the Investment Committee as the case may be.

##  

## 3.4                                 Other Activities.  The Adviser shall be required by the Trusteesto use its best efforts to present a continuing and suitable investment programto the Trust which is consistent with the investment policies and objectives ofthe Trust.  The Adviser may administerthe Trust as its sole and exclusive function or it may engage in otheractivities including the rendering of advice to other investors and themanagement of other investments, including but not limited to other real estateinvestment trusts.  The contract of theAdviser shall, however, prohibit the Adviser and any Affiliate of the Adviserfrom entering into an investment advisory contract with any other real estateinvestment trust the investment policy of which is substantially similar tothat of the Trust, and shall prohibit the Adviser from entering into such acontract with any Person the investment policy of which is substantiallysimilar to that of the Trust.  The Trusteesmay request the Adviser to engage in certain other activities which complementthe Trust’s

 

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## investments, and the Adviser mayprovide services requested by the borrowers or prospective borrowers of theTrust, and the Adviser may receive compensation or commissions therefor fromthe Trust or other Persons.  The Advisershall be required to act on a basis which is fair and reasonable to the Trustand the Shareholders in selecting from among the particular investmentopportunities that come to the Adviser those investment opportunities which itpresents to the Trust.

 

# ARTICLE IV 

#  

# INVESTMENTS 

#  

## 4.1                                 Statement of Investment Policy.  The general purpose of the Trust is to seekreal estate investment trust income as defined in the REIT Provisions of theInternal Revenue Code.  The Trusteesintend to make investments in such a manner as to comply with the requirementsof the REIT Provisions of the Internal Revenue Code in respect of thecomposition of the Trust’s investments and the derivation of its income;provided, however, that no Trustee, director, officer, employee or agent of theTrust or the Adviser shall be liable to any Person for any act or omissionresulting in the loss of tax benefits under the Internal Revenue Code, exceptfor that arising from his or its own bad faith, willful misconduct, grossnegligence or reckless disregard of his or its duties or actions not in goodfaith in the reasonable belief that such action was in the best interest of theTrust.

##  

# ARTICLE V

#  

# LIMITATIONS OF LIABILITY 

#  

## 5.1                                 Liability to Third Persons.  No Shareholder shall be subject to anypersonal liability whatsoever, in tort, contract or otherwise, to any otherPerson in connection with Trust Property or the affairs of the Trust; and,except in the case of breach of duty to the Trust or to Shareholders andsubject to the provisions of Section 5.2 hereof, no Trustee, officer,employee or agent of the Trust shall be subject to any personal liabilitywhatsoever, in tort, contract or otherwise, to any other Person in connectionwith Trust Property or the affairs of the Trust and all such other Personsshall look solely to the Trust Property for satisfaction of claims of anynature arising in connection with the affairs of the Trust.  If any Shareholder, Trustee, officer,employee or agent, as such, of the Trust is made a party to any suit orproceedings to enforce any such liability, he shall not on account thereof beheld to any personal liability.

##  

## 5.2                                 Liability to Trust or to Shareholders.  No Trustee, officer,employee or agent of the Trust shall be liable in damages to the Trust or toany Shareholder, Trustee, officer, employee or agent of the Trust for anyaction or failure to act (including without limitation the failure to compel inany way any former or acting Trustee to redress any breach of trust) except forhis own bad faith, willful misconduct, gross negligence or reckless disregardof his duties or for his failure to act in good faith in the reasonable beliefthat his action was in the best interests of the Trust.  No Trustee of the Trust shall be liable indamages to the Trust or to any Shareholder, Trustee, officer, employee or agentof the Trust for any action he takes or fails to take as a Trustee (includingwithout limitation the failure to compel in any way any former or actingTrustee to redress any breach of trust), unless it is proved by clear andconvincing evidence in a

 

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## court of competent jurisdictionthat his action or failure to act involved an act or omission undertaken withdeliberate intent to cause injury to the Trust or undertaken with recklessdisregard for the best interests of the Trust. In determining what he reasonably believes to be in the best interestsof the Trust for purposes of this Article V, a Trustee shall consider theinterests of Shareholders and, in his discretion, may consider any of thefactors which a director of a corporation incorporated under the laws of theState of Ohio may consider under Ohio law in the performance of his duties as adirector of such corporation.

 

## 5.3                                 Indemnification.  The Trust shall indemnify and hold eachShareholder harmless from and against all claims and liabilities, whether theyproceed to judgment or are settled or otherwise brought to a conclusion, towhich such Shareholder may become subject by reason of his being or having beena Shareholder, and shall reimburse such Shareholder for all legal and otherexpenses reasonably incurred by him in connection with any such claim orliability.  The rights accruing to aShareholder under this Section 5.3 shall not exclude any other right towhich such Shareholder may be lawfully entitled, nor shall anything hereincontained restrict the right of the Trust to indemnify or reimburse aShareholder in any appropriate situation even though not specifically providedherein; provided, however, that the Trust shall have no liability to reimburseShareholders for taxes assessed against them by reason of their ownership ofShares, nor for any losses suffered by reason of changes in the market value ofSecurities of the Trust.

##  

The Trust shall indemnify each ofits Trustees, officers, employees and agents (including those who serve at itsrequest as directors, officers, partners, trustees or the like of another Personin which it has any interest as a shareholder, creditor or otherwise), againstall liabilities and expenses, including amounts paid in satisfaction ofjudgments, in compromise or as fines and penalties, and counsel fees,reasonably incurred by him in connection with the defense or disposition of anyaction, suit or other proceeding by the Trust or any other Person, whethercivil or criminal, in which he may be involved or with which he may bethreatened, while in office or thereafter, by reason of his being or havingbeen such a Trustee, officer, employee or agent, except in respect of anymatter as to which he shall have been adjudicated to have acted in bad faith orwith willful misconduct or reckless disregard of his duties or gross negligenceor not to have acted in good faith in the reasonable belief that his action wasin the best interests of the Trust; provided, however, that as to any matterdisposed of by a compromise payment by such Trustee, officer, employee oragent, pursuant to a consent decree or otherwise, no indemnification either forsaid payment or for any other expenses shall be provided unless the Trust shallhave received a written opinion from counsel approved by the Trustees to theeffect that if the foregoing matters had been adjudicated, they would likelyhave been adjudicated in favor of such Trustee, officer, employee or agent orunless a meeting of the Trustees at which a quorum consisting of Trustees whoare not parties to or threatened with such action, suit or other proceedingshall make such a determination.  Therights accruing to any Trustee, officer, employee or agent under theseprovisions shall not exclude any other right to which he may be lawfullyentitled; provided, however, that no Trustee, officer, employee or agent maysatisfy any right of indemnity or reimbursement granted herein or to which hemay be otherwise entitled except out of the Trust Property, and no Shareholdershall be personally liable to any Person in respect of any claim for indemnityor reimbursement or otherwise.  TheTrustees may make advance payments in connection with indemnification underthis Section 5.3, provided that the indemnified Trustee, officer, employeeor agent shall have given a written undertaking to

 

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reimbursethe Trust in the event it is subsequently determined that he is not entitled tosuch indemnification.

 

Any actiontaken by or conduct on the part of the Adviser, a Trustee, officer, employee oragent of the Trust in conformity with or in good faith reliance upon theprovisions ofSection 2.17 or Section 3.4 shall not, for the purposes of this Trust(including, without limitation, Sections 5.1 and 5.2 hereof and thisSection 5.3) constitute bad faith, willful misconduct, gross negligence orreckless disregard of his duties, or failure to act in good faith in thereasonable belief that his action was in the best interests of the Trust.

 

## 5.4                                 Surety Bonds.  NoTrustee shall, as such, be obligated to give any bond or surety or othersecurity for the performance of any of his duties.

##  

## 5.5                                 Apparent Authority.  Any act of the Trustees of officers of theTrust purporting to be done in their capacity as such, shall, as to any Persondealing with such Trustees or officers, be conclusively deemed to be within thepurposes of the Trust and within the powers of such Trustees and officers.  No purchaser, lender, transfer agent or otherPerson dealing with the Trustees or any officer, employee or agent of the Trustshall be bound to make any inquiry concerning the validity of any transactionpurporting to be made by the Trustees or by such officer, employee or agent ormake inquiry concerning or be liable for the application of money or propertypaid, loaned or delivered to or on the order of the Trustees or of suchofficer, employee or agent.

##  

## 5.6                                 Recitals.  Any written instrument creating an obligationof the Trust shall be conclusively taken to have been executed or done by aTrustee or Trustees or an officer, employee or agent of the Trust only in theiror his capacity as Trustees or Trustee under this Declaration of Trust or inthe capacity of officer, employee or agent of the Trust.  Any written instrument creating an obligationof the Trust shall refer to this Declaration of Trust and contain a recital tothe effect that the obligations thereunder are not personally binding upon, norshall resort be had to the private property of, any of the Trustees,Shareholders, officers, employees or agents of the Trust, but the TrustProperty or a specific portion thereof only shall be bound, and may contain anyfurther recital which they or he may deem appropriate, but the omission of suchrecital shall not operate to impose personal liability on any of the Trustees,Shareholders, officers, employees or agents of the Trust.  The Trustees shall, at all times, maintaininsurance for the protection of the Trust Property, its Shareholders, Trustees,officers, employees and agents in such amounts as the Trustees shall deemadequate to cover all foreseeable tort liability to the extent available atreasonable rates.

##  

## 5.7                                 Reliance on Experts, etc.  Each Trustee and each officer of the Trustshall, in the performance of his duties, be fully and completely justified andprotected with regard to any act or any failure to act resulting from reliancein good faith upon the books of account or other records of the Trust, upon anopinion of counsel or upon reports made to the Trust by any of its officers oremployees or by the Adviser, accountants, appraisers or other experts orconsultants selected with reasonable care by the Trustees or officers of theTrust, regardless of whether such counsel or expert may also be a Trustee.

 

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# ARTICLE VI 

#  

# SHARES 

#  

## 6.1                                 Description of Shares.  The interests of the Shareholders hereundershall be divided into Shares of one or more classes.  The number of shares authorized hereunder isunlimited.  Ownership of Shares shall beevidenced by certificates.  Except asotherwise provided in a resolution adopted pursuant to Section 6.2, allShares shall have equal non-cumulative voting, distribution, liquidation andother rights, shall be without par value, and shall be fully paid andnonassessable, and shall have no preference, conversion, exchange, preemptiveor redemption rights.  Upon the issuanceof Shares pursuant to Section 6.2, all Shares previously issued pursuantto this Section 6.1 shall be reclassified and designated Common Shares orClass A Common Shares as specified by Section 6.2.

##  

## 6.2                                 Additional Shares.  (a) The Trustees hereby are authorizedexpressly at any time, and from time to time, to issue one or more additionalclasses or series of Shares without par value, with such voting powers (subjectto the limitations hereinafter set forth), or without voting powers, as shallbe specified in the resolution or resolutions providing for the issuancethereof.  Upon the first issuance ofShares in accordance with the procedures set forth in this Section 6.2(a),the Trustees shall reclassify and designate as Class A Common Shares all Sharesother than Preferred Shares which were outstanding immediately prior to suchissuance. Except as to voting powers as herein described, all additionalclasses or series of Shares authorized by the Trustees under thisSection 6.2(a) shall be Common Shares and shall be identical in allrespects to the Class A Common Shares. The Trustees shall specify in a resolution or resolutions the classes orseries of such additional Common Shares and the number and designationthereof.  The resolution or resolutionsshall state the extent, if any, to which the holders of the Common Shares ofsuch class or series shall be entitled to vote in respect of the election ofTrustees or otherwise, including, without limitation, the extent, if any towhich such holders shall be entitled, voting as a series or as part of a kindor class, to elect one or more Trustees upon the happening of a specific eventor otherwise, provided that the voting rights of such Common shares shall be nogreater than those required or recommended by (i) any stock exchange uponwhich any Securities of the Trust shall be listed or (ii) any nationalsecurities association by which any Securities of the Trust shall be authorizedfor a quotation or transaction reporting. Further, in no event shall additional Common Shares issued by theTrustees pursuant to this Section 6.2(a) carry greater voting rights thanthe Class A Common Shares.

##  

#### (b)                                 The Trustees hereby are authorized expressly at any time, andfrom time to time, to issue Preferred Shares, either without par value or withsuch par value or par values as the Trustees shall specify in a resolution orresolutions providing for the issuance thereof, in one or more classes orseries, with such voting powers (subject to the limitations hereinafter setforth), or without voting powers, and with such designations, preferences andrelative, participating, optional or other special rights and qualifications,limitations or restrictions, as shall be stated and expressed in the resolutionor resolutions providing for the issuance thereof, and as are not otherwisestated and expressed in this Declaration of Trust, including (without limitingthe generality thereof) the following as to each such class or series:

 

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##### (i)                                     the number of Shares to constitute such class or series andthe designation thereof,

#####  

##### (ii)                                  the par value or absence of par value of Shares issued insuch class or series,

#####  

##### (iii)                               the dividends payable in respect of such class or series, therates or basis for determining such dividends, any conditions and dates uponwhich such dividends shall be payable, the preference, if any, of suchdividends over, or the relation of such dividends to, the dividends payable onany other kind, class or series of Shares of the Trust (including Common Sharesof any class or series), whether such dividends shall be non-cumulative orcumulative, and, if cumulative, the date or dates from which such dividendsshall be cumulative,

#####  

##### (iv)                              whether the Shares of such class or series shall have theright to participate with the Shares of any other class or series in theprofits of the Trust, and, if so, the terms of such participation,

#####  

##### (v)                                 whether the Shares of such class or series shall be callableor redeemable, in addition to the Trust’s right to acquire Shares from time totime as set forth in Sections 8.3 and 8.5, at the option of the Trust orthe holder or both, or upon the happening of a specified event, and, ifcallable or redeemable, the conditions giving rise to the right of such call orredemption, whether such call or redemption shall be for cash, property orrights, including Securities of the Trust, and the times, prices, rates andadjustments and other terms of such redemption,

#####  

##### (vi)                              whether the Trust shall be required to purchase or redeem theShares of such class or series on a certain date or dates or upon the happeningof a specified event, and, if so, the terms of such purchase or redemption,

#####  

##### (vii)                           the terms and amounts of any sinking, retirement or purchasefund provided for the purchase or redemption of Shares of such class or series,

#####  

##### (viii)                        whether Shares of such class or series shall be convertibleinto or exchangeable for Shares of another kind, class or series, at the optionof the Trust or of the holder, or both, or upon the happening of a specifiedevent, and, if provision be made for such conversion or exchange, the terms,prices, rates, adjustments and any other condition thereof,

#####  

##### (ix)                                the extent, if any, to which the holders of the Shares ofsuch class or series shall be entitled to vote in respect of the election ofTrustees or otherwise, including, without limitation, the extent, if any, towhich such holders shall be entitled, voting as a series or as part of a kindor class, to elect one or more Trustees upon the happening of a specific eventor otherwise, provided that the voting rights of such Shares shall be nogreater than those required or recommended by (1) any stock exchange uponwhich any Securities of the Trust shall be listed or (2) any nationalsecurities association by which any Securities of the Trust shall be authorizedfor quotation or transaction reporting,

 

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##### (x)                                   the restrictions, if any, on the issue or reissue of Sharesof such class or series or of any other class or series,

#####  

##### (xi)                                the extent, if any, to which the holders of the Shares ofsuch class or series shall be entitled to preemptive rights, and

#####  

##### (xii)                             the preferences, and the amounts thereof, of the holders ofthe Shares of such class or series upon the voluntary or involuntarydissolution of the Trust or any distribution of its assets.  If the first issuance of Preferred Sharesunder this Section 6.2(b) shall occur prior to the first issuance ofadditional Common Shares under Section 6.2(a), the Trustees shallreclassify and designate as Common Shares the Shares which were outstandingimmediately prior to the first issuance of Preferred Shares.

#####  

#### (c)                                  Before the Trust shall issue any additional Shares of anyclass or series, a certificate setting forth the resolution or resolutions ofthe Trustees fixing the voting powers and number of Shares of such class orseries and the designations thereof, and, as to Preferred Shares, the preferencesand rights of such class or series and the qualifications, limitations orrestrictions thereof, shall be signed and acknowledged by the Chairman, a ViceChairman, the President, if any, the Secretary or an Assistant Secretary of theTrust and filed in accordance with the requirements of Ohio law for filingamendments to this Declaration of Trust, whereupon the same shall be deemed tobe an amendment hereof.

####  

Unless otherwise provided in anysuch resolution or resolutions, the number of Shares of the class or seriesauthorized by such resolution or resolutions may be increased or decreased, butnot below the number of Shares of such class or series then outstanding, by acertificate, setting forth a resolution or resolutions of the Trusteesauthorizing such increase or decrease, signed and acknowledged by the Chairman,a Vice Chairman, the President, if any, the Secretary or an Assistant Secretaryof the Trust and filed in accordance with the requirements of Ohio law forfiling amendments to this Declaration of Trust. Unless otherwise provided in such resolution or resolutions, anyamendment to such resolution or resolutions may be effected by a certificate,setting forth a resolution of the Trustees authorizing such amendment andcertifying that such amendment has been approved by such votes, if any, as maybe required pursuant to Section 13.1, signed and acknowledged by theChairman, a Vice Chairman, the President, if any, the Secretary or an AssistantSecretary of the Trust and filed in accordance with the requirements of Ohiolaw for filing amendments to this Declaration of Trust.  Any such amendment may, without limitation,cancel or otherwise affect the right of the holder of the Shares of such classor series to receive dividends which have accrued but have not been declared.Holders of Common Shares shall not be entitled to vote on such amendments toany such resolutions.

 

## 6.3                                 Certificates.  Every Shareholder shall be entitled toreceive a certificate, in such form as the Trustees shall from time to timeapprove, specifying the number of Shares held by such Shareholder.  Certificates which were validly issued priorto any Amendment to the Declaration of Trust that authorizes the issuance ofadditional Shares shall remain valid. Upon the first issuance of Common Sharesin accordance with the procedure set forth in Section 6.2(a), allcertificates representing Shares other than Preferred Shares then outstandingautomatically shall represent the newly designated Class A Common Shares andupon transfer or exchange of

 

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## any such certificates, newcertificates which shall bear the designation “Class A Common Shares” shall beissued to the Shareholders.  If the firstissuance of Preferred Shares under Section 6.2(b) shall occur priorto the first issuance of Common Shares under Section 6.2(a), allcertificates representing Shares then outstanding automatically shall representthe newly designated “Common Shares” and upon transfer or exchange of any suchcertificates, new certificates which shall bear the designation “Common Shares”shall be issued to the Shareholders. Subject to Sections 6.5 and 8.5hereof, such certificates shall be treated as negotiable and title thereto andto the Shares represented thereby shall be transferred by delivery thereof tothe same extent in all respects as a stock certificate, and the sharesrepresented thereby, of an Ohio business corporation.  Unless otherwise determined by the Trustees,such certificates shall be signed by the Chairman or a Vice Chairman, or thePresident, if any, and the Secretary or an Assistant Secretary and shall becounter-signed by a transfer agent, and registered by a registrar, if any, andsuch signatures may be facsimile signatures in accordance with Section 2.6hereof.  There shall be filed with eachtransfer agent a copy of the form of certificate so approved by the Trustees,certified by the Chairman or the Secretary, and such form shall continue to beused unless and until the Trustees approve some other form.

##  

In furtherance of the provisions ofSection 8.5 hereof, each certificate evidencing Shares shall contain alegend imprinted thereon to the following effect, or such other legend as theTrustees may from time to time adopt.

 

“Provisions Relating to Redemption and Prohibition ofTransfer of Shares.”

 

“If necessary to effect compliance by the Trust withcertain requirements of the Internal Revenue Code, the shares represented bythis certificate are subject to redemption by the Trustees of the Trust and thetransfer thereof may be prohibited upon the terms and conditions set forth inthe Declaration of Trust.  The Trust willfurnish a copy of such terms and conditions to the registered holder of thiscertificate upon request and without charge.”

 

## 6.4                                 Fractional Shares.  In connection with any issuance of Shares,the Trustees may issue fractional Shares or may provide for the issuance ofscrip including, without limitation, the time within which any such scrip mustbe surrendered for exchange into full Shares and the rights, if any, of holdersof scrip upon the expiration of the time so fixed, the rights, if any, toreceive proportional distributions, and the rights, if any to redeem scrip forcash, or the Trustees may in their discretion, or if they see fit at the optionof each holder, provide in lieu of scrip for the adjournment of the fractionsin cash.  The provisions ofSection 6.3 hereof relative to certificates for Shares shall apply so faras applicable to such scrip, except that such scrip may in the discretion ofthe Trustees be signed by a transfer agent alone.

##  

## 6.5                                 Issuance of Units.  Notwithstanding any other provision of thisDeclaration of Trust, the Trustees may issue from time to time units consistingof different Securities of the Trust. Any Security issued in any such unit shall have the same characteristicsand shall entitle the registered holder thereof to the same rights as anyidentical Securities issued by the Trustees, except that the Trustees mayprovide (and may cause a notation to be placed on the certificate representingsuch unit or Securities or the Trust issued in any such unit) that for aspecified

 

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## period not to exceed one year afterissuance, Securities of the Trust issued in any such unit may be transferred onthe books of the Trust only in such unit.

 

## 6.6                                 Issuance of Warrants.  The Trustees, in their discretion, may fromtime to time issue warrants to purchase Shares (hereinafter referred to as “Warrants”)which shall entitle the holders thereof to subscribe to Shares at such time ortimes and on such terms as the Trustees may prescribe including, withoutlimiting the generality of the foregoing, the times within which any suchWarrants may be exercised and the consideration to be paid for such Shares;provided, however, that warrants may not be issued in connection with a privatefinancing with an exercise price per share less than 100% of fair market valueof the Shares at the date of issuance; for this purpose the determination offair market value of the Shares shall be made in the same manner as providedfor the redemption price of Securities in Section 8.5.  Warrants may be issued to such parties andfor such consideration as the Trustees may from time to time determine(including the issuance of detachable or nondetachable warrants as aninducement to persons acquiring or underwriting notes, debentures, bonds,instruments, Shares or other Securities of the Trust).  The provisions of this Article VIrelative to certificates for Shares shall apply so far as appropriate to suchWarrants.

##  

# ARTICLE VII

#  

# RECORD AND TRANSFER OF SHARES 

#  

## 7.1                                 Share Register.  A register shall be kept by or on behalf ofthe Trustees, under the direction of the Trustees, which shall contain thenames and addresses of the Shareholders and the number of Shares held by themrespectively and the numbers of the certificates representing such Shares and arecord of all transfers thereof.  OnlyShareholders whose certificates are recorded on such register shall be entitledto vote or to receive distributions or otherwise to exercise or enjoy therights of Shareholders.  No Shareholdershall be entitled to receive any distribution, nor to have notice to him as hereinprovided, until he has given his address to a transfer agent or such otherofficer or agent of the Trust as shall keep the register for entry thereon.

##  

## 7.2                                 Transfer Agent.  The Trustees shall have power to employ,within or without the State of Ohio, a transfer agent or transfer agents and, ifthey so determine, a registrar or registrars. The transfer agent or transfer agents may keep the register and recordtherein the original issues and transfers of Shares and countersigncertificates for Shares issued to the persons entitled thereto.  Any such transfer agents and registrars shallperform the duties usually performed by transfer agents and registrars ofcertificates of stock in a corporation, except as modified by theTrustees.  Any such transfer agents orregistrars may be Affiliates of a Trustee or of an officer, director orshareholder of the Adviser.  Theprovisions of Article VII relative to transfer agents shall apply so faras appropriate to warrant agents.

##  

## 7.3                                 Blank Certificates.  In accordance with the usual customs ofcorporations having a transfer agent, signed certificates for Shares in blankmay be deposited with any transfer agent of the Trust, to be used by suchtransfer agent in accordance with authority conferred upon it as occasion mayrequire, and in so doing the signers of such certificates shall not beresponsible for any loss resulting therefrom.

 

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## 7.4                                 Owner of Record.  Any person becoming entitled to any Shares inconsequences of the death, bankruptcy or insolvency of any Shareholder, orotherwise by operation of law, shall be recorded as the holder of such Sharesand receive a new certificate for the same upon production of the properevidence thereof and delivery of the existing certificate to the Trustees or atransfer agent of the Trust.  But untilsuch record is made, the Shareholder of record shall be deemed to be the holderof such Shares for all purposes hereof and neither the Trustees nor anytransfer agent or registrar nor any officer or agent of the Trust shall beaffected by any notice of such death, bankruptcy, insolvency or other event.

##  

## 7.5                                 Transfers of Shares.  Shares shall be transferable on the recordsof the Trust (other than by operation of law) only by the record holder thereofor by his agent thereunto duly authorized in writing upon delivery to the Trustor a transfer agent of the Trust of the certificate or certificates therefor,with all transfer tax stamps affixed or duly provided for, properly endorsed oraccompanied by duly executed instrument or instruments of transfer, togetherwith such evidence of the genuineness of each such endorsement, execution andauthorization and of other matters as may reasonably be required by the Trustor the transfer agent.  Upon suchdelivery the transfer shall be recorded on the register of the Trust and a newcertificate for the Shares so transferred shall be issued to the transferee,and, in case of a transfer of only a part of the Shares represented by anycertificate, a new certificate for the residue thereof shall be issued to thetransferor.  But until such record ismade, the Shareholder of record shall be deemed to be the holder of such Sharesfor all purposes hereof and neither the Trustees nor the Trust nor any transferagent or registrar nor any officer or agent of the Trust shall be affected byany notice of the proposed transfer. This Section 7.5 and Section 7.4 hereof are subject in allrespects to the provisions of Sections 6.5 and 8.5 hereof.

##  

## 7.6                                 Limitation of Fiduciary Responsibility.  The Trustees shallnot, nor shall the Shareholders or any officer, transfer agent or other agentof the Trust, be bound to see to the execution of any trust, express, impliedor constructive, or of any charge, pledge or equity to which any of the Sharesor any interest therein are subject, or to ascertain or inquire whether anysale or transfer of any such Shares or interest therein are subject, ascertainor inquire whether any sale or transfer of any such Shares or interest thereinby any such Shareholder or his personal representatives is authorized by suchtrust, charge, pledge or equity, or to recognize any Person as having anyinterest therein except the Persons recorded as such Shareholders.  The receipt of the Person in whose name anyShare is recorded, or, if such Share is recorded in the names of more than onePerson, the receipt of any one of such Persons or of the duly authorized agentof any such Person shall be a sufficient discharge for all money, Securitiesand other property payable, issuable or deliverable in respect of such Shareand from all liability to see to the proper application thereof.

##  

## 7.7                                 Notices.  Any and all notices to which Shareholdershereunder may be entitled and any and all communications shall be deemed dulyserved or given if mailed, postage prepaid, addressed to Shareholder of recordat their last known post office address as recorded on the Share registerprovided for in Section 7.1 hereof.

##  

## 7.8                                 Replacement of Certificates.  In case of the loss, mutilation ordestruction of any certificate for Shares hereunder, the Trustees may issue orcause to be issued a new certificate on such terms as they may deem fit.

 

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# ARTICLE VIII 

#  

# CHARACTERISTICS OF SHARES; RESTRICTIONS ON TRANSFER 

#  

## 8.1                                 General.  The ownership of the Trust Property of everydescription and the right to conduct any business hereinbefore described arevested exclusively in the Trustees, and the Shareholders shall have no interesttherein other than the beneficial interest conferred by their Shares, and theyshall have no right to call for any partition or division of any property,profits, rights or interests of the Trust nor can they be called upon to shareor assume any losses of the Trust or suffer an assessment of any kind by virtueof their ownership of Shares.  The Sharesshall be personal property giving only the rights specifically set forth inthis Declaration of Trust, in any resolution adopted pursuant toSection 6.2 and in the certificates for such Shares.  Except as otherwise provided in a resolutionadopted pursuant to Section 6.2, the Shares shall not entitle the holderto preference, preemptive, appraisal, conversion or exchange rights of anykind.

##  

## 8.2                                 Death of Shareholders.  The death of a Shareholder during thecontinuance of the Trust shall not terminate this Declaration of Trust nor givesuch Shareholder’s legal representatives a right to an accounting or apartition of the Trust assets or to take any action in the courts or otherwiseagainst other Shareholders or the Trustees or the Trust Property, but shallsimply entitle the legal representatives of the deceased Shareholder to demandand receive, pursuant to the provisions of Section 7.4 hereof, a newcertificate for Shares in place of the certificate held by the deceasedShareholder, and upon the acceptance thereof such legal representative shallsucceed to all the rights of the deceased Shareholder under this Declaration ofTrust.

##  

## 8.3                                 Repurchase of Securities of the Trust.  The Trustees may, onbehalf of the Trust, purchase or otherwise acquire outstanding Securities ofthe Trust from time to time for such consideration and on such terms as theymay deem proper.  Shares so purchased oracquired by the Trustees for the account of the Trust shall not, so long asthey belong to the Trust, receive distributions (other than, at the option ofthe Trustees, distributions in Shares) or be entitled to any votingrights.  Such Shares may in thediscretion of the Trustees be cancelled and the number of Shares issued therebyreduced, or such Shares may in the discretion of the Trustees be held in thetreasury and may be disposed of by the Trustees at such time or times, to suchparty or parties and for such considerations as the Trustees may determine.

##  

## 8.4                                 Trustees as Shareholders.  Any Trustee in his individual capacity maypurchase and otherwise acquire or sell and otherwise dispose of Shares of otherSecurities issued by the Trust, and may exercise all the rights of aShareholder to the same extent as though he were not a Trustee.

##  

## 8.5                                 Restrictions on Transfer of Preferred Shares and CommonShares.

##  

### (a)                                  Definitions. Forpurposes of this Section 8.5, the following terms shall have the followingmeanings set forth below:

###  

##### (i)                                     “Beneficial Ownership” shall mean ownership of Equity Sharesby a Person who would be treated as an owner of such Equity Shares eitherdirectly or indirectly through the application of Section 544 of theInternal Revenue Code,

 

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##### as modified by Section 856(h)(1)(B) of the InternalRevenue Code.  The terms “BeneficialOwner,” “Beneficially Owns,” and “Beneficially Owned” shall have correlativemeanings.

 

##### (ii)                                  “Beneficiary” shall mean, with respect to any trust, one ormore organizations described in each of Section 170(b)(1)(A) (other thanclause (vii) or (viii) thereof) and Section 70(c)(2) of theInternal Revenue Code that are named by the Corporation as the beneficiary orbeneficiaries of such trust, in accordance with Section (1) ofDivision C.II. hereof.

#####  

##### (iii)                               “Board of Trustees” shall mean the Board of Trustees of theTrust.

#####  

##### (iv)                              “RRF, L.P. Agreement” shall mean the First Amended andRestated Agreement of Limited Partnership of RRF Limited Partnership, aDelaware limited partnership, of which the Trust is the general partner.

#####  

##### (v)                                 “Constructive Ownership” shall mean ownership of EquityShares by a Person who would be treated as an owner of such Equity Shareseither directly or indirectly through the application of Section 318 ofthe Internal Revenue Code, as modified by Section 856(d)(5) of theInternal Revenue Code.  The terms “ConstructiveOwner,” “Constructively Owns,” and “Constructively Owned” shall havecorrelative meanings.

#####  

##### (vi)                              “Equity Shares” shall mean and include all Preferred Sharesand Common Shares of the Trust as well as any Equity Shares that are held asShares-in-Trust in accordance with this Section 8.5.

#####  

##### (vii)                           “Exchange Rights” shall mean the rights granted under theRRF, L.P. Agreement to the limited partners to exchange, under certaincircumstances, their limited partnership interests for common shares (or, atthe option of the trust, for cash).

#####  

##### (viii)                        “Existing Holder” shall mean (i) the Wirth Family and(ii) any Person who, on the date hereof, beneficially owns Common Shares inexcess of the Ownership Limit.

#####  

##### (ix)                                “Existing Holder Limit” shall mean, for any Existing Holderwho is an Existing Holder by virtue of clause (ii) of the definitionthereof, the percentage of the outstanding Common Shares Beneficially Owned bysuch Existing Holder on the date hereof. From and after the date hereof, thesecretary of the Trust shall maintain and, upon request, make available to eachExisting Holder, a schedule which sets forth the then current Existing HolderLimits for each Existing Holder.

#####  

##### (x)                                   “Market Price” on any date shall mean the average of theClosing Price for the five consecutive Trading Days ending on such date.  The “Closing Price” on any date shall meanthe last sale price, regular way, or, in case no such sale takes place on suchday, the average of the closing bid and asked prices,

 

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##### regular way, in either case as reported in the principalconsolidated transaction reporting system with respect to securities listed oradmitted to trading on the New York Stock Exchange or, if the applicable EquityShares are not listed or admitted to trading on the New York Stock Exchange, asreported in the principal consolidated transaction reporting system withrespect to securities listed on the principal national securities exchange onwhich those Equity Shares are listed or admitted to trading or, if those EquityShares are not listed or admitted to trading on any national securitiesexchange, the last quoted price, or if not so quoted, the average of the highbid and low asked prices in the over-the-counter market, as reported by theNational Association of Securities Dealers, Inc. Automated Quotation System or,if such system is no longer in use, the principal other automated quotations systemthat may then be in use or, if the shares of Equity Shares are not quoted byany such organization, the average of the closing bid and asked prices asfurnished by a professional market maker making a market in those Equity Sharesselected by the Board of Trustees.

 

##### (xi)                                “Non-Transfer Event” shall mean an event other than apurported Transfer that would cause any Person to Beneficially Own orConstructively Own Equity Shares in excess of the Ownership Limit, including,but not limited to, the issuance, granting of any option or entering into ofany agreement for the sale, transfer or other disposition of Equity Shares orthe sale, transfer, assignment or other disposition of any securities or rightsconvertible into or exchangeable for Equity Shares.

#####  

##### (xii)                             “Ownership Limit” shall mean 4.9% of the number ofoutstanding shares of any class of Equity Shares.

#####  

##### (xiii)                          “Permitted Transferee” shall mean any Person designated as aPermitted Transferee in accordance with this Section 8.5.

#####  

##### (xiv)                         “Person” shall mean an individual, corporation, partnership,estate, trust, a portion of a trust permanently set aside for or to be usedexclusively for the purposes described in Section 642(c) of theInternal Revenue Code, association, private foundation within the meaning ofSection 509(a) of the Internal Revenue Code, joint stock company orother entity and also includes a “group” as that term is used for purposes ofSection 12(d)(3) of the Securities Exchange Act of 1934, as amended.

#####  

##### (xv)                            “Prohibited Owner” shall mean, with respect to any purportedTransfer or Non-Transfer Event, any Person who, but for this Section 8.5,would own record title to Equity Shares.

#####  

##### (xvi)                         “Restriction Termination Date” shall mean the first day afterthe date of this Second Amended and Restated Declaration of Trust on which theBoard of Trustees determines that it is no longer in the best interests of theTrust to attempt to, or continue to, qualify as a REIT.

 

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##### (xvii)                      “Shares-in-Trust” shall mean any Equity Shares designated asShares-in-Trust pursuant to this Section 8.5.

#####  

##### (xviii)                   “Trading Day” shall mean a day on which the principalnational securities exchange on which the applicable Equity Shares are listedor admitted to trading is open for the transaction of business or, if thoseEquity Shares are not listed or admitted to trading on any national securitiesexchange, shall mean any day other than a Saturday, a Sunday or a day on whichbanking institutions in the State of New York are authorized or obligated bylaw or executive order to close.

#####  

##### (xix)                           “Transfer” (as a noun) shall mean any sale, transfer, gift,assignment, devise or other disposition of Equity Shares, whether voluntary orinvoluntary, whether of record, constructively or beneficially and whether byoperation of law or otherwise. “Transfer” (as a verb) shall have thecorrelative meaning.

#####  

##### (xx)                              “Trustee” shall mean any Person or entity unaffiliated withboth the Trust and any Prohibited Owner, such Trustee to be designated by theCorporation to act as trustee of any Trust, or any successor trustee thereof.

#####  

##### (xxi)                           “Wirth Family” shall mean James F. Wirth, his spouse, linealdescendants of James F. Wirth, any trust of which any of the foregoing aregrantors or beneficiaries and any Person owned and controlled by any of theforegoing.

#####  

##### (xxii)                        “Wirth Family Limit” shall, initially, mean 34.9% of thenumber of outstanding shares of any class of Equity Shares.

#####  

### (b)                                 Restriction onTransfers and Non-Transfer Event.

###  

##### (i)                                     Except as set forth in Section 8.5(g) below, from thedate hereof to the Restriction Termination Date, (A) no Person (other than anExisting Holder) shall Beneficially Own or Constructively Own outstandingEquity Shares in excess of the Ownership Limit, but any Transfer orNon-Transfer Event that, if effective, would result in any Person BeneficiallyOwning or Constructively Owning outstanding Equity Shares in excess of theOwnership Limit shall be void AB INITIO as to the Transfer or Non-TransferEvent affecting that number of Equity Shares which would be otherwiseBeneficially Owned or Constructively Owned by such Person in excess of theOwnership Limit and the intended transferee shall acquire no rights in suchexcess Equity Shares, (B) no Existing Holder (that is not a member of the WirthFamily) shall Beneficially Own or Constructively Own outstanding Equity Sharesin excess of the Existing Holder Limit, but any Transfer or Non-Transfer Eventthat, if effective, would result in any Person Beneficially Owning or ConstructivelyOwning outstanding Equity Shares in excess of the Existing Holder Limit shallbe void AB INITIO as to the Transfer or Non-Transfer Event affecting thatnumber of Equity Shares which would be otherwise Beneficially Owned orConstructively Owned by such Person

 

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#####  

##### in excess of the Existing Holder Limit and the intendedtransferee shall acquire no rights in such excess Equity Shares, and (C) noExisting Holder that is a member of the Wirth Family shall Beneficially Own orConstructively Own outstanding Equity Shares in excess of the Wirth FamilyLimit, but any Transfer or Non-Transfer Event that, if effective, would resultin any Person Beneficially Owning or Constructively Owning outstanding EquityShares in excess of the Wirth Family Limit shall be void AB INITIO as to theTransfer or Non-Transfer Event affecting that number of Equity Shares whichwould be otherwise Beneficially Owned or Constructively Owned by such Person inexcess of the Wirth Family Limit and the intended transferee shall acquire norights in such excess Equity Shares.

#####  

##### (ii)                                  Except as set forth in Section 8.5(g) below, from thedate hereof to the Restriction Termination Date, any Transfer or Non-TransferEvent that, if effective, would result in any class of Equity Shares beingbeneficially owned by fewer than 100 Persons (determined without reference toany rules of attribution) shall be void AB INITIO as to the Transfer orNon-Transfer Event affecting that number of shares which would be otherwisebeneficially owned (determined without reference to any rules of attribution)by the transferee, and the intended transferee shall acquire no rights in suchEquity Shares.

#####  

##### (iii)                               From the date hereof to the Restriction Termination Date, anyTransfer of or Non-Transfer Event affecting Equity Shares that, if effective,would result in the Trust being “closely held” within the meaning ofSection 856(h) of the Internal Revenue Code shall be void AB INITIO as tothe Transfer of or Non-Transfer Event affecting that number of Equity Shareswhich would cause the Trust to be “closely held” within the meaning ofSection 856(h) of the Internal Revenue Code, and the intended transfereeshall acquire no rights in such Equity Shares.

#####  

##### (iv)                              From the date hereof to the Restriction Termination Date, anyTransfer of or Non-Transfer Event affecting Equity Shares that, if effective,would cause the Trust to Constructively Own 10% or more of the ownershipinterests in a tenant of the real property of the Trust or of any direct orindirect subsidiary of the Trust (a “Subsidiary”), within the meaning ofSection 856(d)(2)(B) of the Internal Revenue Code, shall be void AB INITIOas to the Transfer of or Non-Transfer Event affecting that number of EquityShares which would cause the Trust to Constructively Own 10% or more of theownership interests in a tenant of the Trust’s or of a Subsidiary’s realproperty, within the meaning of Section 856(d)(2)(B) of the InternalRevenue Code, and the intended transferee shall acquire no rights in suchexcess Equity Shares.

#####  

### (c)                                  (i) If,notwithstanding the other provisions contained in this Section 8.5, at anytime after the date hereof and prior to the Restriction Termination Date thereis a purported Transfer or Non-Transfer Event such that any Person (other thanan Existing Holder) would either Beneficially Own or Constructively Own EquityShares in excess of the Ownership Limit, then, (i) except as set forth inSection 8.5(g) below, the purported

 

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### transferee shallacquire no right or interest (or, in the case of a Non-Transfer Event, thePerson holding record title to the Equity Shares Beneficially Owned orConstructively Owned by such Beneficial Owner or Constructive Owner, shall ceaseto own any right or interest) in such number of Equity Shares which would causesuch Beneficial Owner or Constructive Owner to Beneficially Own orConstructively Own Equity Shares in excess of the Ownership Limit,(ii) such number of Equity Shares in excess of the Ownership Limit(rounded up to the nearest whole share) shall be designated Shares-in-Trustand, in accordance with this Section 8.5, transferred automatically byoperation of the terms of this Section 8.5(c)(i) to a trust to beheld in accordance with Section 8.6, and (iii) the Prohibited Ownershall submit such number of Equity Shares to the Trust for registration in thename of the Trustee. Such transfer to a trust and the designation of shares asShares-in-Trust shall be effective as of the close of business on the businessday prior to the date of the Transfer or Non-Transfer Event, as the case maybe.

###  

##### (ii)                                  If, notwithstanding the other provisions contained in thisSection 8.5, at any time after the Date hereof and prior to the RestrictionTermination Date, there is a purported Transfer or Non-Transfer Event that, ifeffective, would (i) result in any class of the Equity Shares beingbeneficially owned by fewer than 100 Persons (determined without reference toany rules of attribution), (ii) result in the Trust being “closely held”within the meaning of Section 856(h) of the Internal Revenue Code, or(iii) cause the Trust to Constructively Own 10% or more of the ownershipinterests in a tenant of the Trust’s or of a subsidiary’s real property, withinthe meaning of Section 856(d)(2)(B) of the Internal Revenue Code, then (x)the purported transferee shall not acquire any right or interest (or, in thecase of a Non-Transfer Event, the Person holding record title to the EquityShares with respect to which such Non-Transfer Event occurred, shall cease toown any right or interest) in such number of Equity Shares, the ownership ofwhich by such purported transferee or record holder would (A) result in anyclass of Equity Shares being beneficially owned by fewer than 100 Persons(determined without reference to any rules of attribution), (B) result in theTrust being “closely held” within the meaning of Section 856(h) of theInternal Revenue Code, or (C) cause the Trust to Constructively Own 10% or moreof the ownership interests in a tenant of the Trust’s or of a subsidiary’s realproperty, within the meaning of Section 856(d)(2)(B) of the InternalRevenue Code, (y) such number of Equity Shares (rounded up to the nearest wholeshare) shall be designated Shares-in-Trust and, in accordance with thisSection 8.5, transferred automatically by operation of the terms of thisSection 8.5 to a Trust to be held in accordance with Section 8.6, and(z) the Prohibited Owner shall submit such number of Equity Shares to the Trustfor registration in the name of the Trustee. Such transfer to a trust and the designation of shares asShares-in-Trust shall be effective as of the close of business on the businessday prior to the date of the Transfer or Non-Transfer Event, as the case maybe.

#####  

### (d)                                 If the Trust, or itsdesignee, shall at any time determine in good faith that a Transfer orNon-Transfer Event has taken place in violation of this Section 8.5 orthat a Person intends to acquire or has attempted to acquire BeneficialOwnership or

 

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### Constructive Ownershipof any Equity Shares in violation of this Section 8.5, the Trust shalltake such action as it considers advisable to refuse to give effect to or toprevent such Transfer or Non-Transfer Event or acquisition, including, but notlimited to, refusing to give effect to such Transfer on the books of the Trustor instituting proceedings to enjoin such Transfer or Non-Transfer Event oracquisition.

 

### (e)                                  Any Person whoacquires or attempts to acquire Equity Shares in violation of thisSection 8.5, or any Person who owned Equity Shares that were transferredto a trust pursuant to this Section 8.5, shall immediately give writtennotice to the Trust of such event and shall provide to the Trust such otherinformation as the Trust may request in order to determine the effect, if any,of such event on the Trust’s status as a REIT.

###  

### (f)                                    From the date hereofto the Restriction Termination Date:

###  

##### (i)                                     Every Beneficial Owner or Constructive Owner of more than4.9%, or such lower percentage as is specified pursuant to regulations issuedunder the Internal Revenue Code, of the outstanding shares of any class ofshares of the Trust shall, within 30 days after January 1 of each year, provideto the Trust a written statement or affidavit stating the name and address ofsuch Beneficial Owner or Constructive Owner, the number of Equity SharesBeneficially Owned or Constructively Owned, and a description of how suchshares are held.

#####  

##### (ii)                                  Each Person who is a Beneficial Owner or Constructive Ownerof Equity Shares and each Person (including the shareholder of record) who isholding Equity Shares for a Beneficial Owner or Constructive Owner shallprovide to the Trust a written statement or affidavit stating such informationas the Trust may request in order to determine the Trust’s status as a REIT andto ensure compliance with the Ownership Limit as applicable.

#####  

### (g)                                 The Ownership Limitshall not apply to the acquisition of Equity Shares by an underwriter thatparticipates in a public offering of such shares for a period of 90 daysfollowing the purchase by such underwriter of such shares.  In addition, the Board of Trustees, uponreceipt of a ruling from the Internal Revenue Service or an opinion of counsel,in either case to the effect that the Trust’s status as a REIT would not bejeopardized thereby, may allow a Person to own a certain amount in excess ofthe Ownership Limit if (i) the Board of Trustees obtains suchrepresentations and undertakings from such Person as are reasonably necessaryto ascertain that no Person’s Beneficial Ownership or Constructive Ownership ofEquity Shares could result in the Trust (a) losing its REIT status forfederal income tax purposes, or (b) being “related” to any tenant orlessee under the REIT rules of the Internal Revenue Code, and (ii) suchPerson agrees in writing that any violation or attempted violation that couldcause such a result will cause a transfer to a trust of Equity Shares pursuantto this Section 8.5.

###  

### (h)                                 Notwithstanding anyprovision contained herein to the contrary, nothing in this Second Amended andRestated Declaration of Trust shall preclude the settlement of any transactionentered into through the facilities of the New York Stock Exchange.

 

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## 8.6                                 Shares-in-Trust.

##  

### (a)                                  Any Equity Sharestransferred to a trust and designated Shares-in-Trust pursuant toSection 8.5 shall be held for the exclusive benefit of theBeneficiary.  The Trust shall name aBeneficiary for each Trust within five days after the Trust first has actualnotice of the existence thereof.  Anytransfer to a Trust, and designation of Equity Shares as Shares-in-Trust, shallbe effective as of the close of business on the business day prior to the dateof the Transfer or Non-Transfer Event that results in the transfer to theTrust. Shares-in-Trust shall continue to constitute issued and outstandingEquity Shares of the Trust and shall be entitled to the same rights and privilegesas are all other issued and outstanding Equity Shares of the same class andseries.  When transferred to a PermittedTransferee in accordance with this Section 8.6, such Shares-in-Trust shallcease to be designated as Shares-in-Trust.

###  

### (b)                                 The Trust, as recordholder of Shares-in-Trust, shall be entitled to receive all dividends anddistributions declared by the Board of Trustees on such Shares-in-Trust andshall hold such dividends and distributions in trust for the benefit of theBeneficiary.  The Prohibited Owner withrespect to Shares-in-Trust shall repay to the Trust the amount of any dividendsor distributions received by it that (i) are attributable to thoseShares-in-Trust and (ii) the record date of which was on or after the datethat such shares became Shares-in-Trust. The Trust shall take all measures that it determines reasonablynecessary to recover the amount of any such dividend or distribution paid to aProhibited Owner, including, if necessary, withholding any portion of futuredividends or distributions payable on Equity Shares Beneficially Owned orConstructively Owned by the Person who, but for the provisions of thisSection 8.6, would Constructively Own or Beneficially Own theShares-in-Trust; and, as soon as reasonably practicable following the Trust’sreceipt or withholding thereof, shall pay over to the Trust for the benefit ofthe Beneficiary the dividends so received or withheld, as the case may be.

###  

### (c)                                  In the event of anyvoluntary or involuntary liquidation, dissolution or winding up of, or anydistribution of the assets of, the Trust, each holder of Shares-in-Trust shallbe entitled to receive, ratably with each other holder of Equity Shares of thesame class or series, that portion of the assets of the Trust which isavailable for distribution to the holders of such class and series of EquityShares.  The Trust shall distribute tothe Prohibited Owner the amounts received upon such liquidation, dissolution,or winding up, or distribution; PROVIDED, HOWEVER, that the Prohibited Ownershall not be entitled to receive amounts pursuant to this Section 8.6 inexcess of, in the case of a purported Transfer in which the Prohibited Ownergave value for Equity Shares and which Transfer resulted in the transfer of theshares to the Trust, the price per share, if any, such Prohibited Owner paidfor the Equity Shares and, in the case of a Non-Transfer Event or Transfer inwhich the Prohibited Owner did not give value for such shares (e.g., if theshares were received through a gift or devise) and which Non-Transfer Event orTransfer, as the case may be, resulted in the transfer of shares to the Trust,the price per share equal to the Market Price on the date of such Non-TransferEvent or Transfer.  Any remaining amountin such trust shall be distributed to the Beneficiary.

 

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### (d)                                 The Trustee shall beentitled to vote all Shares-in-Trust. Any vote by a Prohibited Owner as a holder of Equity Shares prior to thediscovery by the Trust that the Equity Shares are Shares-in-Trust shall, so faras is practicable under applicable law, be rescinded and shall be void ABINITIO with respect to such Shares-in-Trust and the Prohibited Owner shall bedeemed to have given, as of the close of business on the business day prior tothe date of the Transfer or Non-Transfer Event that results in the transfer tothe Trust of Equity Shares pursuant to this Section 8.6, an irrevocableproxy to the Trustee to vote the Shares-in-Trust in the manner in which the Trustee,in its sole and absolute discretion, considers advisable.

###  

### (e)                                  Designation ofPermitted Transferee.  The Trustee shallhave the exclusive and absolute right to designate a Permitted Transferee ofany Shares-in-Trust.  In an orderlyfashion so as not to materially adversely affect the Market Price of theShares-in-Trust, the Trustee shall designate a Person as Permitted Transferee,so long as (i) the Permitted Transferee so designated purchases forvaluable consideration (whether in a public or private sale) theShares-in-Trust and (ii) the Permitted Transferee so designated canacquire such Shares-in-Trust without such acquisition resulting in a transferto a trust and the redesignation of such Equity Shares as Shares-in-Trust.  Upon the designation by the Trustee of aPermitted Transferee, the Trustee shall (i) cause to be transferred to thePermitted Transferee that number of Shares-in-Trust acquired by the PermittedTransferee, (ii) cause to be recorded on the books of the Trust that thePermitted Transferee is the holder of record of such number of Equity Shares,(iii) cause the Shares-in-Trust to be canceled, and (iv) distributeto the Beneficiary any and all amounts held by the Trustee with respect to theShares-in-Trust after making any payment to the Prohibited Owner required underSections 8.6(c) and 8.6(f).

###  

### (f)                                    Compensation toRecord Holder of Equity Shares That Become Shares-in-Trust.  Any Prohibited Owner shall be entitled(following designation of Equity Shares proposed or purported to be held by thatProhibited Owner as Shares-in-Trust and subsequent designation of a PermittedTransferee or the Trustee’s acceptance of an offer to purchase such shares) toreceive from the Trustee following the sale or other disposition of suchShares-in-Trust the lesser of (i) in the case of (a) a purportedTransfer in which the Prohibited Owner gave value for Equity Shares and whichTransfer resulted in the transfer of the shares to the Trust, the price pershare, if any, such Prohibited Owner paid for the Equity Shares, or (b) aNon-Transfer Event or Transfer in which the Prohibited Owner did not give valuefor such shares (e.g., if the shares were received through a gift or devise)and which Non-Transfer Event or Transfer, as the case may be, resulted in thetransfer of shares to the Trust, the price per share equal to the Market Priceon the date of such Non-Transfer Event or Transfer, and (ii) the price pershare received by the Trustee from the sale or other disposition of suchShares-in Trust.  Any amounts received bythe Trustee in respect of such Shares-in-Trust and in excess of such amounts tobe paid to the Prohibited Owner shall be distributed to the Beneficiary.  Each Beneficiary and Prohibited Owner waiveany and all claims that they may have against the Trustee and the Trust arisingout of the disposition of Shares-in-Trust, except for claims arising out of thegross negligence or willful misconduct of, or any failure to make payments inaccordance with this Section 8.6, by such Trustee or the Trust.

 

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### (g)                                 Purchase Right inShares-in-Trust.  Shares-in-Trust shallbe considered to have been offered for sale to the Trust, or its designee, onthe date of the event that created such Shares-in-Trust status at a price pershare equal to the lesser of (i) the price per share in the event thatcreated such Shares-in- Trust status (or, in the case of a devise, gift orNon-Transfer Event, the Market Price at the time of such devise, gift orNon-Transfer Event) and (ii) the Market Price on the date the Trust, orits designee, accepts such offer.  TheTrust shall have the right to accept such offer for a period of ninety daysafter the later of (i) the date of the event which created suchShares-in-Trust status and (ii) the date the Trust determines in goodfaith that an event occurred that created such Shares-in-Trust status, if theTrust does not receive a notice of such event.

###  

## 8.7                                 Remedies Not Limited.

##  

Nothing contained in thisSection 8.7 shall limit the authority of the Trust to take such otheraction as it deems necessary or advisable to protect the Trust and theinterests of its shareholders by preservation of the Trust’s status as a REITand to ensure compliance with the Ownership Limit.

 

## 8.8                                 Ambiguity.

##  

In the case of any ambiguity in theapplication of any provision of Sections 8.5 to 8.7, including anydefinition contained herein, the Board of Trustees shall have the power todetermine the application of that provision.

 

## 8.9                                 Legend.

##  

Each certificate for Equity Sharesshall bear the following legend:

 

                                                The Common Shares or Preferred Shares represented by thiscertificate are subject to restrictions on transfer for the purpose of theTrust’s maintenance of its status as a real estate investment trust under theInternal Revenue Code of 1986, as amended (the “Code”).  No Person may (i) Beneficially Own orConstructively Own Common Shares in excess of 4.9% of the number of outstandingCommon Shares, (ii) Beneficially Own or Constructively Own shares of anyclass or series of Preferred Shares in excess of 9% of the number ofoutstanding shares of that class or series of Preferred Shares,(iii) beneficially own Equity Shares that would result in the EquityShares being beneficially owned by fewer than 100 Persons (determined withoutreference to any rules of attribution), (iv) Beneficially Own EquityShares that would result in the Trust being “closely held” underSection 856(h) of the Code, or (v) Constructively Own Equity Shares thatwould cause the Trust to Constructively Own 10% or more of the ownershipinterests in a tenant of the Trust’s or of a Subsidiary’s real property, withinthe meaning of Section 856(d)(2)(B) of the Code.  Each holder of Equity Shares is required tofurnish the Trust such information as the Trust may request pursuant toSection 6 of the Trust’s Second Amended and Restated Declaration ofTrust.  Any Person who attempts toBeneficially Own or Constructively Own Equity Shares in excess of the abovelimitations must immediately notify the Trust in

 

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writing. If those restrictions are violated, the EquityShares represented hereby in excess of those limitations will be transferredautomatically by operation of the Trust’s Second Amended and Restated Declarationof Trust to a Trust and will be designated Shares-in-Trust.  All capitalized terms in this legend have themeanings defined in the Trust’s Second Amended and Restated Declaration ofTrust, as they may be amended from time to time, a copy of which, including therestrictions on transfer, will be sent without charge to each shareholder whoso requests.

 

## 8.10                           Severability.

##  

Each provision of Sections 8.5to 8.9 shall be several, and an adverse determination as to any such provisionshall in no way affect the validity of any other provision.

 

# ARTICLE IX 

#  

# SHAREHOLDERS 

#  

## 9.1                                 Meetings of Shareholders.

##  

### (a)                                  Annual meetings of theShareholders shall be held at such place within or without the State of Ohio onsuch day and at such time as the Trustee shall designate.  The business transacted at such meeting shallinclude the election of Trustees and may include the transaction of such otherbusiness as Shareholders may be entitled to vote upon as hereinafter providedin this Article IX, or as the Trustees may determine.  The presence in person or by proxy of theholders of a majority of outstanding Shares representing a majority of thevoting power of all outstanding Shares entitled to vote thereat shallconstitute a quorum at any annual or special meeting.

###  

### (b)                                 Special meetings ofthe Shareholders may be called at any time by a majority of the Trustees andshall be called by any Trustee upon written request of Shareholders holdingoutstanding Shares representing in the aggregate not less than 20% of the votingpower of all outstanding Shares entitled to vote thereat, such requestspecifying the purpose or purposes for which such meeting is to be called.  Any such meeting shall be held at such placewithin or without the State of Ohio on such day and at such time as theTrustees shall designate.

###  

## 9.2                                 Notice of Meetings.  Notice of all meetings of the Shareholders,stating the time, place and purposes of the meeting, shall be given by theTrustees by mail to each Shareholder entitled to vote thereat at his registeredaddress, mailed at least 10 days and not more than 60 days before the meeting.Only the business stated in the notice of the meeting shall be considered atsuch meeting.  Any adjourned meeting maybe held adjourned without further notice.

##  

## 9.3                                 Voting Rights of Shareholders.  Except as otherwise provided in a resolutionadopted pursuant to Section 6.2, the Shareholders shall be entitled tovote only upon the following matters: (a) election of Trustees as provided in Sections 10.2 orSection 10.4 hereof; (b) termination of the agreement with theAdviser as provided in Section 3.2 hereof; (c) amendment of thisDeclaration of Trust or termination of this Trust as provided in

 

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## Section 12.1 hereof. Except inrespect of the foregoing matters specified in this Section 9.3, no actiontaken by the Shareholders at any meeting shall in any way bind the Trustees.Prior to the first issuance of additional Shares in accordance with theprocedure set forth in Section 6.2, each Share shall be entitled to onevote.  Upon the reclassification ofShares pursuant to Section 6.2(a) or Section 6.2(b), each Shareissued pursuant to Section 6.1 (and thereafter reclassified and designatedas a Class A Common Share or Common Share, as the case may be), shall beentitled to one vote, and each additional Share issued pursuant toSection 6.2 will be entitled to such voting rights as shall have beenspecified by the resolutions authorizing the class or series of such additionalShare pursuant to Section 6.2.

##  

## 9.4                                 Record Date for Meetings.  For the purpose of determining theShareholders who are entitled to vote or act at any meeting or any adjournmentthereof, or who are entitled to participate in any dividend or distribution, orfor the purpose of any other action, the Trustees may from time to time closethe transfer books for such period, not exceeding 30 days, as the Trustees maydetermine; or without closing the transfer books the Trustee may fix a date notmore than 60 days prior to the date of any meeting of Shareholders or dividendpayment or other action as a record date for the determination of Shareholdersentitled to vote at such meeting or any adjournment thereof or to receive suchdividend or to be treated as Shareholders of record for purposes of such otheraction, and any Shareholder who was a Shareholder at the time so fixed shall beentitled to vote at such meeting or any adjournment thereof or to receive suchdividend, even though he has since that date disposed of his Shares, and noShareholder becoming such after that date shall be so entitled to vote at suchmeeting or any adjournment thereof or to receive such dividend or to be treatedas Shareholders of record for purposes of such other action.

##  

## 9.5                                 Proxies, etc.  At any meeting of Shareholders, any holder ofShares entitled to vote thereat may vote by proxy, provided that no proxy shallbe voted at any meeting unless it shall have been placed on file with theSecretary, or with such other officer or agent of the Trust as the Secretarymay direct, for verification prior to the time at which such vote shall betaken. Pursuant to a resolution of a majority of the Trustees, proxies may besolicited in the name of one or more Trustees or one or more of the officers ofthe Trust.  Neither fractional Shares norscrip fractional Shares shall be entitled to any vote.  When any Share entitled to vote is heldjointly by several persons, any one of them may vote at any meeting in personor by proxy in respect of such Share, but if more than one of them shall bepresent at such meeting in person or by proxy, and such joint owners or theirproxies so present disagree as to any vote to be cast, such vote shall not bereceived in respect of such Share.  Aproxy purporting to be executed by or on behalf of a Shareholder shall bedeemed valid unless challenged at or prior to its exercise, and the burden ofproving invalidity shall rest on the challenger.  If the holder of any such Share is a minor ora person of unsound mind, and subject to guardianship or to the legal controlof any other person as regards the charge or management of such Share, he mayvote by his guardian or such other person appointed or having such control, andsuch vote may be given in person or by proxy.

##  

## 9.6                                 Reports.  The Trustees shall cause to be prepared atleast annually a report on operations containing a balance sheet and statementof income and undistributed income of the Trust prepared in conformity withgenerally accepted accounting principles and an opinion of an independentcertified public accountant or independent public accountant on the financial

 

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## statements based on an examinationof the books and records of the Trust, and made in accordance with generallyaccepted auditing standards.  Copies ofsuch reports shall be mailed to all Shareholders of record within 120 days ofthe period covered by the report.  TheTrustees shall, in addition, furnish to the Shareholders, promptly after theend of each of the first three quarterly periods of every fiscal year, aninterim report containing an unaudited balance sheet of the Trust as at the endof such quarterly period and a statement of income and surplus for the periodfrom the beginning of the current fiscal year to the end of such quarterlyperiod.

##  

## 9.7                                 Inspection of Records.  The records of the Trust shall be open toinspection by Shareholders to the same extent as is permitted shareholders ofan Ohio business corporation.

##  

## 9.8                                 Shareholder Action by Written Consent.  Any action taken byShareholders may be taken without a meeting if a majority of Shareholdersholding outstanding Shares representing a majority of the voting power of alloutstanding Shares entitled to vote on the matter (or such larger proportionthereof as shall be required by any express provision of this Declaration ofTrust) consent to the action in writing and the written consents are filed withthe records of the meetings of Shareholders. Such consent shall be treated for all purposes as a vote taken at ameeting of Shareholders.

##  

# ARTICLE X

#  

# TRUSTEES 

#  

## 10.1                           Number and Qualification.  The number of Trustees shall be fixed fromtime to time by written instrument signed by a majority of the Trustees then inoffice; provided, however, that the number of Trustees shall in no event beless than five.  Any vacancy created byan increase in Trustees may be filled by the appointment of an individualhaving the qualifications described in this Section 10.1 made by a writteninstrument signed by a majority of the Trustees then in office.  Any such appointment shall not becomeeffective, however, until the individual named in the written instrument ofappointment shall have accepted in writing such appointment and agreed inwriting to be bound by the terms of this Declaration of Trust.  No reduction in the number of Trustees shallhave the effect of removing any Trustee from office prior to the expiration ofhis term.  Whenever a vacancy in thenumber of Trustees shall occur, until such vacancy is filled as provided inSection 10.4 hereof, the Trustees or Trustee continuing in office,regardless of their number, shall have all the powers granted to the Trusteesand shall discharge all the duties imposed upon the Trustees by thisDeclaration of Trust.  A Trustee shall bean individual at least 21 years of age who is not under legaldisability.  The Trustees, in theircapacity as Trustees, shall not be required to devote their entire time to thebusiness and affairs of the Trust.

##  

## 10.2                           Terms and Election.  Each Trustee named herein, or elected orappointed as provided in Section 10.1 or 10.4 hereof prior to the firstannual meeting of Shareholders, shall (except in the event of resignations orremovals or vacancies pursuant to Section 10.3 or 10.4 hereof) hold officeuntil his successor has been elected at such meeting and has qualified to serveas Trustee.  The Trustees shall bedivided into three classes, to be denominated the “Class A Trustees”, the “ClassB Trustees” and the “Class C Trustees”, with the number of Trustees of eachsuch class being as equal as possible, and with each Trustee to be nominatedand elected for

 

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## a term ending on the date of thethird annual meeting of shareholders following the annual meeting at which suchTrustee was elected; provided, however, that upon the ratification of thisSecond Amended and Restated Declaration of Trust by the Shareholders of theTrust, the Trustees shall by resolution designate the Trustees to serve initiallyas Class A Trustees, Class B Trustees and Class C Trustees.  The initial Class A Trustees shall serve fora term expiring at the Annual Meeting to be held in 1999, the initial Class BTrustees shall serve for a term expiring at the Annual Meeting to be held in2000, and the initial Class C Trustees shall serve for a term expiring at theAnnual Meeting to be held in 2001. Trustees may succeed themselves in office.  Except as otherwise provided in a resolutionadopted pursuant to Section 6.2, election of Trustees at an annual meetingshall be by the affirmative vote of the holders of outstanding Sharesrepresenting at least a majority of the voting power of all outstanding Sharesentitled to vote present in person or by proxy at such meeting.  The election of any Trustee (other than anindividual who was serving as a Trustee immediately prior to such election)pursuant to this Section 10.2 shall not become effective unless and untilsuch person shall have in writing accepted his election and agreed to be boundby the terms of this Declaration of Trust. Such Trustee may but need not own Shares.

##  

## 10.3                           Resignation and Removal.  Any Trustee may resign his trust (withoutneed for prior or subsequent accounting) by an instrument in writing signed byhim and delivered or mailed to the Chairman, the President, if any, or theSecretary (referred to in Section 10.6 hereof) and such resignation shallbe effective upon such delivery, or at a later date according to the terms ofthe notice.  Any of the Trustees may beremoved (provided the aggregate number of Trustees after such removal shall notbe less than the number required by Section 10.1 hereof) with cause, bythe action of two-thirds of the remaining Trustees.  Upon the resignation or removal of a Trustee,or his otherwise ceasing to be a Trustee, he shall execute and deliver suchdocuments as the remaining Trustees shall require for the purpose of conveyingto the Trust or the remaining Trustees any Trust Property held in the name ofthe resigning or removed Trustee.  Uponthe incapacity or death of any Trustee, his legal representative shall executeand deliver on his behalf such documents as the remaining Trustees shallrequire as provided in the preceding sentence.

##  

## 10.4                           Vacancies.  The term of office of a Trustee shallterminate and a vacancy shall occur in the event of the death, resignation,bankruptcy, adjudicated incompetence or other incapacity to exercise the dutiesof the office, or removal of a Trustee. No such vacancy shall operate to annul this Declaration of Trust or torevoke any existing agency created pursuant to the terms of this Declaration ofTrust, and title to any Trust Property held in the name of any Trustee alone,jointly with one or more of the other Trustees or otherwise, shall, in theevent of the death, resignation, removal, bankruptcy, adjudicated incompetenceor other incapacity to exercise the duties of the office of such Trustee, vestin the continuing or surviving Trustees without necessity of any further act orconveyance.  In the case of an existingvacancy (other than by reason of increase in the number of Trustees), amajority of the Trustees continuing in office acting by written instrument orinstruments may fill such vacancy, and any Trustee so elected by the Trustees shallhold office until the next annual meeting of Shareholders.  Upon the effectiveness of any suchappointment as provided in this Section 10.4, the Trust Property shall vest insuch new Trustee jointly with the continuing or surviving Trustees without thenecessity of any further act or conveyance; provided, however, that no suchelection or appointment as provided in this Section 10.4 shall becomeeffective unless or until the new Trustee shall have accepted in

 

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## writing his appointment and agreedto be bound by the terms of this Declaration of Trust.  Until any vacancies are filled, the remainingTrustee or Trustees (even though less than five) may exercise the powers of theTrustees hereunder.

##  

## 10.5                           Meetings.  Meetings of the Trustees shall be held fromtime to time upon the call of the Chairman, the President, if any, theSecretary, or any two Trustees.  Regularmeetings of the Trustees may be held without call or notice at a time and placefixed by the By-Laws or by resolution of the Trustees.  Notice of any other meeting shall be mailedor otherwise given not less than 24 hours before the meeting but may be waivedin writing by any Trustee either before or after such meeting.  The attendance of a Trustee at a meetingshall constitute a waiver of notice of such meeting except where a Trusteeattends a meeting for the express purpose of objecting to the transaction ofany business on the ground that the meeting has not been lawfully called orconvened.  The Trustees may act with orwithout a meeting.  A quorum for allmeetings of the Trustees shall be a majority of the Trustees then inoffice.  Subject to Section 2.17hereof and unless specifically provided otherwise in this Declaration of Trust,any action of the Trustees may be taken at a meeting by vote of a majority ofthe Trustees.  Any agreement, deed,mortgage, lease or other instrument or writing executed by one or more of theTrustees or by any authorized Person shall be valid and binding upon the Trusteesand upon the Trust when authorized or ratified by action of the Trustees asprovided in this Declaration of Trust.

##  

Any Investment Committee may actwith or without a meeting.  A quorum forall meetings of any such Committee shall be a majority of members thereof inoffice.  Unless specifically providedotherwise in this Declaration of Trust, any action of any Investment Committeemay be taken at a meeting by vote of a majority of the members present (aquorum being present) or without a meeting by written consents of a majority ofthe members.

 

In respect of actions of theTrustees and any Investment Committee, Trustees who are affiliated within themeaning of Section 2.17 hereof or otherwise interested in any action to betaken may be counted for quorum purposes under this Section 10.5 and shallbe entitled to vote.

 

All or any one or more Trustees mayparticipate in a meeting of the Trustees or any committee thereof by means ofconference telephone or similar communications equipment by means of which allpersons participating in the meeting can hear each other and participation in ameeting pursuant to such communications shall constitute presence in person atsuch meeting.  The minutes of any meetingof Trustees held by telephone shall be prepared in the same manner as a meetingof Trustees held in person.

 

## 10.6                           Officers.  The Trustees shall annually elect a Chairmanwho shall be the principal officer of the Trust.  The Trustees may elect or appoint, from amongtheir number or otherwise, or may authorize the Chairman to appoint, one ormore Vice-Chairmen, a President, one or more Vice-Presidents, a Treasurer,Secretary, Comptroller, one or more Assistant Secretaries and AssistantTreasurers and such other officers or agents, who shall have such powers,duties and responsibilities as the Trustees may deem to be advisable.  Two or more offices may be held by the sameperson.

 

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## 10.7                           By-Laws.  The Trustees may adopt, and from time to timeamend or repeal, By-Laws for the conduct of the business of the Trust, and insuch By-Laws may define the duties of their officers, agents, employees andrepresentatives.

##  

# ARTICLE XI

#  

# DISTRIBUTIONS TO SHAREHOLDERS 

#  

## 11.1                           General.  Subject to the provisions of Section 6.2,(i) the Trustees may from time to time declare and pay to theShareholders, in proportion to their respective ownership of Shares, out of theearnings, profits or surplus (including paid-in capital), capital or assets inthe hands of the Trustees, such dividends or other distributions as they seefit; and (ii) the declaration and payment of such dividends or otherdistributions and the determination of earnings, profits, surplus (includingpaid-in capital) and capital available for dividends and other purposes shalllie wholly in the discretion of the Trustees and no Shareholder shall beentitled to receive or be paid any dividends or to receive any distributionexcept as determined by the Trustees in the exercise of said discretion of theTrustees and no Shareholder shall be entitled to receive or be paid anydividends or to receive any distribution except as determined by the Trusteesin the exercise of said discretion.  TheTrustees shall endeavor from time to time to declare and pay such dividends anddistributions as shall be necessary for the Trust to qualify as a real estateinvestment trust under the REIT Provisions of the Internal Revenue Code.  The Trustees may, in addition, from time totime in their discretion, declare and pay as dividends or other distributionssuch additional amounts, whether or not out of earnings, profits and surplusavailable therefor, sufficient to enable the Trust to avoid or reduce itsliability for Federal income taxes, inasmuch as the computations of net incomeand gains for Federal income tax purposes may vary from the computationsthereof on the books of the Trust. Subject to the provisions of Section 6.2, any or all such dividendsor other distributions may be made, in whole or in part, in cash, property, orother assets of the Trust, or in senior or subordinated, secured or unsecured,evidences of indebtedness of the Trust, as the Trustees may in their solediscretion from time to time determine. The Trustees may also distribute to the Shareholders, in proportion to theirrespective ownership of Shares, additional Shares in such manner and on suchterms as they may deem proper.

##  

## 11.2                           Retained Earnings.  The Trustees, except as provided inSection 11.1 hereof, may also distribute to the Shareholders, inproportion to their respective ownership of Shares, additional Shares in suchmanner and on such terms as they may deem proper.

##  

# ARTICLE XII

#  

# RECORDING OF DECLARATION OF TRUST 

#  

## 12.1                           Amendment or Termination.  The provisions of this Declaration of Trustmay be amended or altered (except as to the limitations of personal liabilityof the Shareholders and Trustees and the prohibition of assessments uponShareholders), or the Trust may be terminated at any meeting of Shareholderscalled for the purpose, by the affirmative vote of the holders of outstandingShares representing not less than two-thirds of the voting power of the Sharesthen outstanding and entitled to vote, or by an instrument or instruments inwriting, without a

 

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## meeting, signed by a majority ofthe Trustees and the holders of outstanding Shares representing not less thantwo-thirds of the voting power of such Shares then outstanding and entitled tovote; provided, however, that, the Trustees may, from time to time by atwo-thirds vote of the Trustees, amend or alter the provisions of thisDeclaration of Trust, without the vote or assent of the Shareholders, to theextent deemed by the Trustees in good faith to be necessary to meet therequirements for qualification as a real estate investment trust under the REITProvisions of the Internal Revenue Code or any interpretation thereof by acourt or other governmental agency of competent jurisdiction.  Notwithstanding the foregoing, (i) noamendment may be made pursuant to this Section 12.1 which would change anyrights in respect of any outstanding Shares of the Trust by reducing the amountpayable thereon upon liquidation of the Trust or by diminishing or eliminatingany voting rights pertaining thereto, except with the vote or written consentof the holders of outstanding Shares representing two-thirds of the votingpower of the outstanding Shares entitled to vote thereon, and (ii) exceptas otherwise expressly provided in this Declaration, no amendment or action maybe made pursuant to this Section 12.1 which would change the powers,preferences or rights expressly applicable to any class or series of Shares soas to affect them adversely, except with the vote or written consent of holdersof outstanding Shares representing two-thirds of the voting power of theoutstanding Shares of such class or series. Upon the termination of the Trust pursuant to this Section 12.1:

##  

### (a)                                  The Trust shall carryon no business except for the purpose of winding up its affairs.

###  

##### (i)                                     The Trustees shall proceed to wind up the affairs of theTrust and all of the powers of the Trustees under this Declaration of Trustshall continue until the affairs of the Trust shall have been wound up,including the power to fulfill or discharge the contracts of the Trust, collectits assets, sell, convey, assign, exchange, transfer or otherwise dispose ofall or any part of the remaining Trust Property to one or more persons atpublic or private sale for consideration which may consist in whole or in partof cash, securities or other property of any kind, discharge or pay itsliabilities, and do all other acts appropriate to liquidate its business;provided that any sale, conveyance, assignment, exchange, transfer or otherdisposition of all or substantially all of the Trust Property shall requireapproval of the principal terms of the transactions and the nature and amountof the consideration by affirmative vote of the holders of outstanding Sharesrepresenting not less than a majority of the voting power of all outstandingShares entitled to vote.

#####  

### (b)                                 After paying oradequately providing for the payment of all liabilities, and upon receipt ofsuch releases, indemnities and refunding agreements, as they deem necessary fortheir protection, the Trustees may distribute the remaining Trust Property, incash or in kind or partly each, among the Shareholders ratably in accordancewith the respective rights, restrictions and preferences of their Shares.

###  

Upon termination of the Trust anddistribution to the Shareholders as herein provided, a majority of the Trusteesshall execute and lodge among the records of the Trust an instrument in writingsetting forth the fact of such termination, and the Trustees shall thereupon bedischarged

 

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from allfurther liabilities and duties hereunder, and the right, title and interest ofall Shareholders shall cease and be cancelled and discharged.

 

## 12.2                           Power to Effect Reorganization.  The Trustees, after receiving an affirmativevote of the holders of outstanding Shares representing not less than a majorityof the voting power of Shares then outstanding and entitled to vote at anymeeting of Shareholders, the notice for which included a statement of suchproposed action, may select or direct the organization of a corporation,association, trust or other organization with which the Trust may merge, orwhich shall take over the Trust Property and carry on the affairs of theTrust.  The Trustees may effect suchmerger or may sell, convey and transfer the Trust Property to any suchcorporation, association, trust or organization in exchange for shares orsecurities thereof, or beneficial interests therein with the assumption by suchtransferee of the liabilities of the Trust; and thereupon the Trustees shallterminate the Trust and deliver such shares, securities or beneficial interestratably among the Shareholders of this Trust in redemption of their Shares inaccordance with respective rights, restrictions and preferences of theirShares.

##  

# ARTICLE XIII 

#  

# MISCELLANEOUS 

#  

## 13.1                           Governing Law.  This Declaration of Trust is executed by theTrustees and delivered in the State of Ohio and with reference to the lawsthereof, and the rights of all parties and the validity, construction and effectof every provision hereof shall be subject to and construed according to thelaws of said State.

##  

## 13.2                           Counterparts.  This Declaration of Trust may besimultaneously executed in several counterparts, each of which so executedshall be deemed to be an original, and such counterparts, together, shallconstitute but one and the same instrument, which shall be sufficientlyevidenced by any such original counterpart.

##  

## 13.3                           Reliance by Third Parties.  Any certificates executed by an individualwho, according to the records of the Trust, or of any recording office in whichthis Declaration of Trust may be recorded, appears to be a Trustee hereunder,certifying to: (a) the number or identity of Trustees or Shareholders,(b) the due authorization of the execution of any instrument or writing,(c) the form of any vote passed at a meeting of Trustees or Shareholders,(d) the fact that the number of Trustees or Shareholders present at anymeeting or executing any written instrument satisfies the requirements of thisDeclaration of Trust, (e) the form of any By-law adopted by or theidentity of any officers elected by the Trustees, or (f) the existence of anyfact or facts which in any manner relate to the affairs of the Trust shall beconclusive evidence as to the matters so certified in favor of any persondealing with the Trustees or any of them and the successors of such person.

##  

## 13.4                           Provisions in Conflict With Law or Regulations.  (a) The provisionsof this Declaration of Trust are severable, and if the Trustees shalldetermine, with the advice of counsel, that any one or more of such provisions(the “Conflicting Provisions”) are in conflict with the REIT Provisions of theInternal Revenue Code or with other applicable federal or state laws andregulations, the Conflicting Provisions shall be deemed never to haveconstituted a part

 

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## of this Declaration of Trust;provided, however, that such determination by the Trustees shall not affect orimpair any of the remaining provisions of this Declaration of Trust or renderinvalid or improper any action taken or omitted (including but not limited tothe election of Trustees) prior to such determination.

 

#### (b)                                 If any provisions of this Declaration of Trust shall be heldinvalid or unenforceable in any jurisdiction, such invalidity orunenforceability shall attach only to such provision in such jurisdiction andshall not in any manner affect or render invalid or unenforceable suchprovision in any other jurisdiction or any other provision of this Declarationof Trust in any jurisdiction.

####  

## 13.5                           Section Headings.  The section headings and Table ofContents have been inserted for convenience and are not a part of thisDeclaration of Trust.

##  

# ARTICLE XIV 

#  

# DURATION OF TRUST

#  

## 14.1                           Duration.  Subject to possible termination in accordancewith the provisions of Article XIII hereof, the Trust created hereby shallcontinue perpetually, except that if under the laws of any jurisdiction inwhich the Trust hereafter acquires any property, such perpetual duration is notpermitted, the Trust shall terminate on the expiration of 20 years after thedeath of the last survivor of the initial Trustees named herein and thefollowing named persons (provided, however, that as to Trust Property locatedin any jurisdiction in which such duration is not permitted, the Trust createdhereby shall terminate on the latest date permitted by the law of suchjurisdiction, using the initial Trustees and the following named persons asmeasuring lives if so permitted):

 
| Michael G.  Berick             | Randolph D.  Lerner           |
|--------------------------------|-------------------------------|
| 14518 Shaker  Boulevard        | 18020 South  Woodland         |
| Shaker  Heights, Ohio          | Shaker  Heights, Ohio         |
| Born:  January 1, 1960    | Born:  February 21, 1962 |
|                           |                          |
| Daniel G.  Berick              | Marc B.  Insul                |
| 14518 Shaker  Boulevard        | 21810  Halburton              |
| Shaker  Heights, Ohio          | Beachwood,  Ohio              |
| Born:  June 25, 1962      | Born:  July 4, 1968      |
|                           |                          |
| Robert G.  Berick              | Linda S.  Pearlman            |
| 14518 Shaker  Boulevard        | 22659  Fairmont Boulevard     |
| Shaker  Heights, Ohio          | Shaker  Heights, Ohio         |
| Born:  September 19, 1966 | Born:  August 9, 1966    |
|                           |                          |
| Joshua J. G.  Berick           | Caren E.  Pearlman            |
| 14518 Shaker  Boulevard        | 22659  Fairmont Boulevard     |
| Shaker  Heights, Ohio          | Shaker  Heights, Ohio         |
| Born:  November 20, 1969  | Born:  April 18, 1969    |

 

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| Nancy F.  Lerner             | Maria T.  Gillombardo      |
|------------------------------|----------------------------|
| 18020 South  Woodland        | 3906 Tyndall  Road         |
| Shaker  Heights, Ohio        | University  Heights, Ohio  |
| Born:  May 11, 1960     | Born:  April 27, 1969 |
|                         |                       |
| Gina M.  Gillombardo         | Benjamin D.  Zelman        |
| 3906 Tyndall  Road           | 2710  Fairmont Boulevard   |
| University  Heights, Ohio    | Cleveland,  Ohio           |
| Born:  October 19, 1970 | Born:  March 9, 1964  |

 

IN WITNESS WHEREOF, the undersignedhave executed these presents on the day and year first above written.

 

Signed and acknowledgedin the presence of:

 

 
| /s/ J. R.  Chase        |   | /s/ James F.  Wirth   |   |
|-------------------------|--------|-----------------------|--------|
|                    |   | James F.  Wirth       |   |
| /s/ Barbara  E. Rudolph |   |                  |   |
|                    |   | /s/ Marc E.  Berg     |   |
| /s/ Kevin W.  Fell      |   | Marc E. Berg          |   |
|                    |   |                  |   |
| /s/ Vonnie  Cayeaux     |   | /s/ Steve  Robson     |   |
|                    |   | Steve Robson          |   |
| Signature  illegible    |   |                  |   |
|                    |   | /s/ Gregory  D. Bruhn |   |
| Signature  illegible    |   | Gregory D.  Bruhn     |   |
|                    |   |                  |   |
| /s/ James B.  Aronoff   |   | /s/ Lee J.  Flory     |   |
|                    |   | Lee J. Flory          |   |
| /s/ Jeremy  L. Trahan   |   |                  |   |
|                    |   | /s/ Edward  G. Hill   |   |
| Signature  illegible    |   | Edward G.  Hill       |   |
|                    |   |                  |
| /s/ Gloria  J. Sinclair |   |                  |
|                    |   |                  |
| /s/ Linda A.  Kilcoi    |   |                  |
|                    |   |                  |
| /s/ Edward  A. Kast     |   |                  |

 

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