EXHIBIT 3.1
ARTICLES SUPPLEMENTARY
RAIT INVESTMENT TRUST
8.375% SERIES B CUMULATIVE REDEEMABLE PREFERRED SHARES OF BENEFICIAL INTEREST
(PAR VALUE $0.01 PER SHARE)
RAIT INVESTMENT TRUST, a Maryland real estate investment trust
(hereinafter called the "Trust"), hereby certifies to the Department of
Assessments and Taxation of the State of Maryland that:
FIRST: Under the authority set forth in Article VI of the Declaration of
Trust of the Trust, as amended (which, as hereinafter amended, restated or
supplemented from time to time is herein called the "Declaration of Trust"), the
Board of Trustees of the Trust (the "Board of Trustees") at a meeting on
September 22, 2004, designated and classified 2,300,000 shares of the authorized
but unissued unclassified preferred shares of beneficial interest, par value
$0.01 per share, of the Trust as the "8.375% Series B Cumulative Redeemable
Preferred Shares of Beneficial Interest," par value $0.01 per share, and has
provided for the issuance of such series.
SECOND: The classification increases the number of shares classified as
8.375% Series B Cumulative Redeemable Preferred Shares of Beneficial Interest,
par value $0.01 per share, from 0 shares immediately prior to the classification
to 2,300,000 shares immediately after the classification. The classification
decreases the number of unclassified preferred shares of beneficial interest,
par value $0.01 per share, from 22,240,000 shares immediately prior to the
classification to 19,940,000 shares immediately after the classification. Prior
to this classification, the Trust had classified 2,760,000 shares as 7.75%
Series A Cumulative Redeemable Preferred Shares of Beneficial Interest, par
value $0.01 per share, of the Trust (the "Series A Preferred Shares").
THIRD: The preferences, conversions and other rights, voting powers,
restrictions, limitations as to dividends and other distributions,
qualifications and terms and conditions of redemption of the 8.375% Series B
Cumulative Redeemable Preferred Shares of Beneficial Interest are as follows:
(1) Designation and Number. A series of preferred shares of
beneficial interest, par value $0.01 per share (the "Preferred Shares"),
designated as the "8.375% Series B Cumulative Redeemable Preferred Shares
of Beneficial Interest" (the "Series B Preferred Shares"), is hereby
established. The number of Series B Preferred Shares shall be 2,300,000
shares. The par value of Series B Preferred Shares shall be $0.01 per
share.
(2) Rank. The Series B Preferred Shares, will, with respect to
dividend rights, redemption rights and rights upon any voluntary or
involuntary liquidation,
dissolution or winding up of the Trust (a "Liquidation"), rank:
(a) senior to all common shares of beneficial interest, par value
$0.01 per share, of the Trust (the "Common Shares") and to all
equity securities issued or to be issued by the Trust the terms of
which provide that such equity securities shall rank junior to the
Series B Preferred Shares (sometimes the Common Shares and such
equity securities are collectively referred to as "Junior Shares");
(b) on a parity with all equity securities issued or to be issued by
the Trust other than those referred to in clauses (a) and (c),
including, without limitation, the Series A Preferred Shares
(sometimes the Series A Preferred Shares and such equity securities
are collectively referred to as "Parity Shares"); and
(c) junior to all (i) equity securities issued or to be issued by
the Trust the terms of which specifically provide that such equity
securities rank senior to the Series B Preferred Shares and (ii)
existing and future indebtedness of the Trust.
The term "equity securities" does not include debt securities of the Trust
that are convertible into or exchangeable for equity securities of the
Trust, which debt securities will rank senior to the Series B Preferred
Shares prior to conversion or exchange.
(3) Dividends. (a) Holders of Series B Preferred Shares shall be
entitled to receive, when, as and if authorized and declared by the Board
of Trustees, out of legally available funds of the Trust, cumulative
preferential cash dividends at the rate of 8.375% of the Liquidation
Preference (as defined hereinafter) per Series B Preferred Share per annum
(which is equivalent to a fixed annual amount of $2.09375 per Series B
Preferred Share). Such dividends shall accrue and cumulate from the date
of original issuance of such share and shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year
or, if not a business day, the next succeeding business day (each a
"Dividend Payment Date"), commencing, with respect to any Series B
Preferred Share, on the Dividend Payment Date next succeeding the date of
original issuance of such share; provided, however, that, with respect to
any Series B Preferred Share issued on or before December 1, 2004 (the
"Initial Series B Preferred Shares"), the initial Dividend Payment Date
shall be December 31, 2004 and the amount of the dividend payable on
December 31, 2004 on any Initial Series B Preferred Share shall be
calculated as if all of the Initial Series B Preferred Shares were issued
on the earliest date of original issuance of any Initial Series B
Preferred Share. Any dividend payable on the Series B Preferred Shares for
any partial dividend period shall be pro rated and computed on the basis
of a 360-day year consisting of twelve 30-day months. Dividends shall be
payable to
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holders of record as they appear in the stock transfer records of the
Trust at the close of business on the applicable dividend record date,
which shall be the first day of the calendar month in which the applicable
Dividend Payment Date falls or, if not a business day, the next succeeding
business day or such other date designated by the Board of Trustees for
the payment of dividends that is not more than 30 nor less than 10
calendar days immediately preceding such Dividend Payment Date (each, a
"Dividend Record Date").
(b) Notwithstanding anything to the contrary contained herein,
dividends on the Series B Preferred Shares shall accrue and cumulate
whether or not the Trust has earnings, whether or not there are funds
legally available for payment of such dividends and whether or not such
dividends are authorized and declared by the Board of Trustees.
Accumulated but unpaid dividends on the Series B Preferred Shares shall
cumulate as of the Dividend Payment Date on which they first become
payable or on the date of redemption, as the case may be. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on Series B Preferred Shares which may be in
arrears.
(c) Except as provided in clause (d) below, if any Series B
Preferred Shares are outstanding, no dividends (collectively, "Parity and
Junior Dividends"), other than distributions in kind of Common Shares or
other shares of the Trust's equity securities ranking junior to the Series
B Preferred Shares as to dividends, may be paid or set apart for payment
on the Common Shares or any other shares of equity securities of the Trust
of any other class or series ranking, as to dividends, on a parity with or
junior to the Series B Preferred Shares unless full cumulative dividends
(the "Dividend Preference Amount") due on any past or contemporaneous
Dividend Payment Date have been or contemporaneously are authorized and
declared and paid as of the payment date of the relevant Parity or Junior
Dividend. Notwithstanding anything herein to the contrary, the Trust may
declare and pay Parity and Junior Dividends without paying or setting
apart for payment any amounts with respect to the dividend due on the
Series B Preferred Shares for any dividend period the Dividend Payment
Date of which has not occurred as of the date of the declaration or
payment of the Parity and Junior Dividends so long as the full Dividend
Preference Amount has been paid through the most recent Dividend Payment
Date for the Series B Preferred Shares.
(d) When dividends are not paid in full (or a sum sufficient
for such full payment is not so set apart) upon the Series B Preferred
Shares and all other equity securities ranking on a parity, as to
dividends, with the Series B Preferred Shares, all dividends authorized
and declared upon the Series B Preferred Shares, shall be authorized and
declared pro rata so that the amount of dividends authorized and declared
per share of Series B Preferred Shares and each such other equity security
shall in all cases bear to each other the same ratio that
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accumulated dividends per Series B Preferred Share and such other equity
security (which shall not include any accumulation in respect of unpaid
dividends for prior dividend periods if such other equity securities do
not have a cumulative dividend) bear to each other.
(e) Notwithstanding the above, the Trust shall not be
prohibited from (i) declaring or paying or setting apart for payment any
dividend or distribution on any Parity Shares or Junior Shares or (ii)
redeeming, purchasing or otherwise acquiring any Parity Shares or Junior
Shares, in each case, if such declaration, payment, redemption, purchase
or other acquisition is necessary to maintain the Trust's qualification as
a real estate investment trust under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code").
(f) No dividends on Series B Preferred Shares shall be
authorized by the Board of Trustees or declared or paid or set apart for
payment by the Trust at such time as the terms and provisions of any
agreement of the Trust, including any agreement relating to its
indebtedness, prohibits such declaration, payment or setting apart for
payment or provides that such declaration, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or if
such declaration or payment shall be restricted or prohibited by law.
(g) If, for any taxable year, the Trust elects to designate as
"capital gain dividends" (as defined in Section 857 of the Code) any
portion (the "Capital Gains Amount") of the dividends (as determined for
federal income tax purposes) paid or made available for the year to
holders of all classes of shares (the "Total Dividends"), then the portion
of the Capital Gains Amount that shall be allocable to the holders of
Series B Preferred Shares shall be the amount that the total dividends (as
determined for federal income tax purposes) paid or made available to the
holders of the Series B Preferred Shares for the year bears to the Total
Dividends. The Trust may elect to retain and pay income tax on its net
long-term capital gains. In such a case, the holders of Series B Preferred
Shares would include in income their appropriate share of the Trust's
undistributed long-term capital gains, as designated by the Trust.
(h) In determining whether a distribution (other than upon a
Liquidation), by dividend, redemption or otherwise, is permitted, amounts
that would be needed, if the Trust were to be dissolved at the time of the
distribution, to satisfy the Liquidation Preference (as defined below)
will not be added to the Trust's total liabilities.
(i) Holders of Series B Preferred Shares shall not be entitled
to any dividends, whether payable in cash, property or shares, in excess
of full cumulative dividends on the Series B Preferred Shares as described
above. Any dividend payment made on the Series B Preferred Shares shall
first be credited against the earliest accumulated but unpaid dividend due
with respect to the Series
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B Preferred Shares which remains payable.
(4) Liquidation Preference. (a) In the event of any Liquidation, the
holders of Series B Preferred Shares then outstanding shall be entitled to
receive out of the assets of the Trust available for distribution to
shareholders (after payment or provision for payment of all debts and
other liabilities of the Trust) an amount equal to $25.00 per share, plus
any accumulated and unpaid dividends thereon to the date of payment (the
"Liquidation Preference"), whether or not authorized and declared, before
any distribution of assets is made to holders of Common Shares and any
other shares of equity securities of the Trust that rank junior to the
Series B Preferred Shares as to Liquidation rights.
(b) If, upon any such Liquidation, the assets of the Trust are
insufficient to make full payment to holders of the Series B Preferred
Shares and any shares of other classes or series of equity securities of
the Trust ranking on a parity with the Series B Preferred Shares as to
Liquidation rights, then the holders of the Series B Preferred Shares and
all other such classes or series of equity securities ranking on a parity
with the Series B Preferred Shares as to Liquidation rights shall share
ratably in any distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be respectively
entitled.
(c) Written notice of any such Liquidation, stating the
payment date or dates when, and the place or places where, the amounts
distributable in such circumstances shall be payable, shall be given by
first class mail, postage pre-paid, not less than 30 nor more than 60
calendar days immediately preceding the payment date stated therein, to
each record holder of the Series B Preferred Shares at the respective
addresses of such holders as the same shall appear on the share transfer
records of the Trust.
(d) After payment of the full amount of the Liquidation
Preference, the holders of Series B Preferred Shares shall have no right
or claim to any of the remaining assets of the Trust.
(e) None of a consolidation or merger of the Trust with or
into another entity, the merger of another entity with or into the Trust,
a statutory share exchange by the Trust or a sale, lease, transfer or
conveyance of all or substantially all of the Trust's property or business
shall be considered a Liquidation.
(f) In determining whether a distribution (other than upon
voluntary or involuntary dissolution) by dividend, redemption or other
acquisition of shares of the Trust or otherwise is permitted under
Maryland law, amounts that would be needed, if the Trust were to be
dissolved at the time of the distribution, to satisfy the preferential
rights upon dissolution of the holders of Series B Preferred Shares will
not be added to the Trust's total liabilities.
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(5) Redemption. (a) The Series B Preferred Shares are not redeemable
prior to October 5, 2009. On or after October 5, 2009, the Trust, at its
option, upon giving notice as provided below, may redeem the Series B
Preferred Shares, in whole or from time to time in part, for cash, at a
redemption price of $25.00 per share, plus all accumulated and unpaid
dividends thereon to the date of redemption, whether or not authorized and
declared (the "Redemption Right").
(b) If fewer than all of the outstanding Series B Preferred
Shares are to be redeemed pursuant to the Redemption Right, the shares to
be redeemed shall be selected pro rata (as nearly as practicable without
creating fractional shares) or by lot or by such other equitable method as
may be prescribed by the Board of Trustees. If such redemption is to be by
lot and, as a result of such redemption, any holder of Series B Preferred
Shares would become a holder of a number of Series B Preferred Shares in
excess of the Ownership Limit (as defined in Article VII of the
Declaration of Trust) or the Excluded Holder Limit (as defined in Article
VII of the Declaration of Trust), as applicable, except as provided in
Section 1(G) of Article VII of the Declaration of Trust, because such
holder's Series B Preferred Shares were not redeemed, or were only
redeemed in part, then the Trust shall redeem the requisite number of
Series B Preferred Shares of such holder such that no holder will hold in
excess of the of the Ownership Limit or the Excluded Holder Limit, as
applicable, subsequent to such redemption or otherwise transfer the shares
pursuant to Article VII.
(c) No Series B Preferred Shares, Common Shares or any other
shares of equity securities of the Trust ranking junior to or on a parity
with the Series B Preferred Shares as to dividends or upon Liquidation
shall be redeemed, purchased or otherwise acquired for any consideration
(or any monies be paid to or made available for a sinking fund for the
redemption of any such shares) by the Trust (except by conversion into or
exchange for shares of equity securities of the Trust ranking junior to or
on parity with the Series B Preferred Shares as to dividends or upon
Liquidation) unless:
(i) the Dividend Preference Amount with respect to all Series
B Preferred Shares has been or contemporaneously is authorized and
declared and paid, or a sum sufficient for the payment thereof is
set apart for payment at the time of such relevant acquisition; and
(ii) the dividend with respect to any Series B Preferred
Shares for which a notice of redemption has been given with respect
to any partial dividend period from the prior Dividend Payment Date
to the redemption date, computed, in the case of such partial
dividend period, in accordance with Section 3(a) above, has been or
contemporaneously is authorized and declared
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and paid or set apart for such payment at the time of such relevant
acquisition.
Notwithstanding anything to the contrary contained herein, no Series B
Preferred Shares shall be redeemed unless all outstanding Series B
Preferred Shares are simultaneously redeemed unless the conditions set
forth in Section 5(c)(i) and (ii) above are met at the time of such
redemption. The restrictions in this Section 5 shall not prevent the
repurchase or transfer of Common Shares or Preferred Shares of any series
of the Trust pursuant to Article VII of the Declaration of Trust or
otherwise in order to enforce the ownership restrictions set forth in
Article VII and ensure that, among other things, the Trust remains
qualified as a real estate investment trust for United States federal
income tax purposes, or the redemption, purchase or acquisition of Series
B Preferred Shares pursuant to a purchase or exchange offer made on the
same terms to all holders of the Series B Preferred Shares.
(d) Prior to or contemporaneous with any redemption of Series
B Preferred Shares, the Trust shall pay, in cash, any accumulated and
unpaid dividends on the Series B Preferred Shares for which a notice of
redemption has been given to the redemption date, whether or not
authorized and declared.
(e) The following provisions set forth the procedures for
redemption:
(i) Notice of redemption will be mailed by the Trust, postage
prepaid, no less than 30 nor more than 60 calendar days immediately
preceding the redemption date, addressed to the respective holders
of record of the Series B Preferred Shares to be redeemed at their
respective addresses as they appear on the stock transfer records of
the Trust. No failure to give such notice or any defect thereto or
in the mailing thereof shall affect the validity of the proceedings
for the redemption of any Series B Preferred Shares except as to the
holder to whom notice was defective or not given.
(ii) In addition to any information required by law or by the
applicable rules of any exchange or automated interdealer quotation
system upon which the Series B Preferred Shares may be listed or
admitted to trading, each notice shall state: (A) the redemption
date; (B) the redemption price; (C) the number of Series B Preferred
Shares to be redeemed; (D) the place or places where the holders of
Series B Preferred Shares may surrender certificates for payment of
the redemption price; and (E) that dividends on the Series B
Preferred Shares to be redeemed will cease to accumulate on the
redemption date. If less than all of the
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outstanding Series B Preferred Shares held by any holder are to be
redeemed, the notice mailed to each holder shall also specify the
number of Series B Preferred Shares held by such holder to be
redeemed.
(iii) On or after the redemption date, each holder of Series B
Preferred Shares to be redeemed shall present and surrender the
certificates representing his or her Series B Preferred Shares to
the Trust at the place designated in the notice of redemption and
thereupon the redemption price of such shares (including all
accumulated and unpaid dividends up to the redemption date) shall be
paid to or on the order of the person whose name appears on such
certificate representing Series B Preferred Shares as the owner
thereof and each surrendered certificate shall be canceled. If fewer
than all the shares represented by any such certificate representing
Series B Preferred Shares are to be redeemed, a new certificate
shall be issued representing the unredeemed shares.
(iv) From and after the redemption date (unless the Trust
defaults in payment of the redemption price), all dividends on the
Series B Preferred Shares designated for redemption and all rights
of the holders thereof, except the right to receive the redemption
price thereof and all accumulated and unpaid dividends up to the
redemption date, shall terminate with respect to such shares and
such shares shall not thereafter be transferred (except with the
consent of the Trust) on the Trust's stock transfer records, and
such shares shall not be deemed to be outstanding for any purpose
whatsoever. At its election, the Trust, prior to a redemption date,
may irrevocably deposit the redemption price (including accumulated
and unpaid dividends to the redemption date) of the Series B
Preferred Shares so called for redemption in trust for the holders
thereof with a bank or trust company, in which case the redemption
notice to holders of the Series B Preferred Shares to be redeemed
shall (A) state the date of such deposit, (B) specify the office of
such bank or trust company as the place of payment of the redemption
price and (C) require such holders to surrender the certificates
representing such shares at such place on or about the date fixed in
such redemption notice (which may not be later than the redemption
date) against payment of the redemption price (including all
accumulated and unpaid dividends to the redemption date). Any monies
so deposited which remain unclaimed by the holders of the Series B
Preferred Shares at the end of two years after the redemption date
shall be returned by such bank or trust company to the Trust.
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(f) The Series B Preferred Shares have no stated maturity and
will not be subject to any sinking fund or mandatory redemption provisions
except as provided under Section 2(G) of Article VII of the Declaration of
Trust.
(g) Subject to applicable law and the limitations on
purchases, redemptions or other acquisitions set forth in Section 5 of
these Articles Supplementary, the Trust may, at any time and from time to
time, purchase any Series B Preferred Shares in the open market, by tender
or by private agreement.
(6) Voting Rights. (a) Holders of the Series B Preferred Shares
shall not have any voting rights, except as set forth below.
(b) Whenever dividends on the Series B Preferred Shares are in
arrears for six or more quarterly periods (whether or not consecutive) (a
"Preferred Dividend Default"), then, in accordance with the Declaration of
Trust, the Board of Trustees shall take all requisite action in accordance
with the Maryland REIT Law and the Declaration of Trust to increase by two
the number of Trustees of the Trust, and the holders of Series B Preferred
Shares (voting together as a single class with all other equity securities
of the Trust upon which like voting rights have been conferred and are
exercisable ("Parity Preferred Shares")) shall be entitled to elect a
total of two additional Trustees to the Board of Trustees (the "Preferred
Trustees") to fill such newly created Trusteeships at an annual meeting of
shareholders or a special meeting held in place thereof or at a properly
called special meeting of the holders of the shares of the Series B
Preferred Shares and of any such Parity Preferred Shares, and at each
subsequent annual meeting of shareholders or special meeting held in place
thereof, until all dividends accumulated on the Series B Preferred Shares
for the past dividend periods shall have been fully paid or authorized and
declared and a sum sufficient for the payment thereof set aside for
payment. This clause (b) shall not limit the right of the Trust to grant
separate voting rights to any other series of Preferred Shares.
(c) If and when the Dividend Preference Amount on the Series B
Preferred Shares shall have been paid in full or authorized and declared
and a sum sufficient for the payment thereof set aside for payment in
full, the holders of Series B Preferred Shares shall be divested of the
voting rights set forth in clause (b) above (subject to revesting in the
event of each and every Preferred Dividend Default) and, if the Dividend
Preference Amount and all dividend arrearages on all other series of
Parity Preferred Shares giving rise to voting rights with respect to the
Preferred Trustees have been paid in full or authorized and declared by
the Board of Trustees and set aside for payment in full, the term of
office of each Preferred Trustee so elected shall expire. Upon the
expiration of the terms of the Preferred Trustees in accordance with the
immediately preceding sentence, the number of Trustees of the Trust shall
automatically be reduced by the number of
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Preferred Trustees whose terms so expired. Any Preferred Trustee may be
removed at any time with or without cause by the vote of, and shall not be
removed otherwise than by the vote of, the holders of a majority of the
outstanding Series B Preferred Shares when they have the voting rights set
forth in clause (b) above and all other series of Parity Preferred Shares
(voting as a single class). So long as a Preferred Dividend Default shall
continue, any vacancy in the office of a Preferred Trustee may be filled
by written consent of the Preferred Trustee remaining in office, or if
none remains in office, by a vote of the holders of a majority of the
outstanding Series B Preferred Shares when they have the voting rights set
forth in clause (b) above and all other series of Parity Preferred Shares
(voting as a single class). The Preferred Trustees shall be entitled to
one vote per Trustee on any matter. The provisions contained in Section
6(b) hereof and in this Section 6(c) constitute an election by the Trust
not to be subject to Section 3-804(c) of the Maryland General Corporation
Law to the extent that holders of Series B Preferred Shares and Parity
Preferred Shares are entitled to elect the Preferred Trustees to the Board
of Trustees during a Preferred Dividend Default.
(d) So long as any Series B Preferred Shares remain
outstanding, the Trust shall not, without the affirmative vote of the
holders of at least two-thirds of the Series B Preferred Shares
outstanding at the time, given in person or by proxy, either in writing or
at a meeting (such series voting separately as a class),
(i) authorize, create or increase the authorized or issued
amount of any class or series of equity securities ranking senior to
the outstanding Series B Preferred Shares with respect to the
payment of dividends or the distribution of assets upon Liquidation
or reclassify any authorized equity securities of the Trust into any
such senior equity securities, or create, authorize or issue any
obligation or security convertible into or evidencing the right to
purchase any such senior equity securities; or
(ii) amend, alter or repeal the provisions of the Declaration
of Trust (including these Articles Supplementary), whether by merger
or consolidation (in either case, an "Event") or otherwise, so as to
materially and adversely affect any right, preference or voting
power of the Series B Preferred Shares; provided, however, that with
respect to any such amendment, alteration or repeal of the
provisions of the Declaration of Trust (including these Articles
Supplementary) upon the occurrence of an Event, so long as Series B
Preferred Shares remain outstanding with the terms thereof
materially unchanged in any adverse respect, taking into account
that, upon the occurrence of an Event, the Trust may not be the
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surviving entity and such surviving entity may thereafter be the
issuer of the Series B Preferred Shares, the occurrence of any such
Event shall not be deemed to materially and adversely affect the
rights, preferences or voting powers of the Series B Preferred
Shares; and provided further that any increase in the amount of
authorized Series B Preferred Shares or the authorization, creation
or issuance of any other class or series of the Trust's equity
securities, in each case ranking on a parity with or junior to the
Series B Preferred Shares with respect to the payment of dividends
and the distribution of assets upon Liquidation shall not be deemed
to materially and adversely affect the rights, preferences or voting
powers of the Series B Preferred Shares.
(e) The foregoing voting provisions shall not apply if, at or
prior to the time when the action with respect to which such vote would
otherwise be required shall be effected, all outstanding Series B
Preferred Shares shall have been redeemed or called for redemption upon
proper notice and sufficient funds shall have been deposited in trust to
effect such redemption.
(7) Conversion. The Series B Preferred Shares are not convertible
into or exchangeable for any other property or securities of the Trust.
(8) Restrictions on Transfer and Shares-in-Trust. The Series B
Preferred Shares are subject to the provisions of Article VII of the
Declaration of Trust.
(9) Status. All Series B Preferred Shares which shall have been
redeemed or reacquired in any manner by the Trust shall be restored to the
status of authorized, but unissued Series B Preferred Shares of the Trust
which may be reissued or reclassified by the Board of Trustees in
accordance with the applicable provisions of the Declaration of Trust.
(10) Exclusion of Other Rights. The Series B Preferred Shares shall
not have any preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions of redemption other than those
specifically set forth in these Articles Supplementary. The Series B
Preferred Shares shall have no preemptive or subscription rights.
(11) Headings of Subdivisions. The headings of the various
subdivisions hereof are for convenience of reference only and shall not
affect the interpretation of any of the provisions hereof.
(12) Severability of Provisions. If any preferences, conversion or
other rights, voting powers, restrictions, limitations as to dividends or
other distributions, qualifications or terms or conditions of redemption
of the Series B
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Preferred Shares set forth in the Declaration of Trust is invalid,
unlawful or incapable of being enforced by reason of any rule of law or
public policy, all other preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions of redemption of Series B Preferred
Shares set forth in the Declaration of Trust which can be given effect
without the invalid, unlawful or unenforceable provision thereof shall,
nevertheless, remain in full force and effect, and no preferences,
conversion or other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications or terms or conditions of
redemption of Series B Preferred Shares herein set forth shall be deemed
dependent upon any other provision thereof unless so expressed therein.
FOURTH: The terms of the Series B Preferred Shares set forth in ARTICLE
THIRD hereof shall become Article XV of the Declaration of Trust.
FIFTH: These Articles Supplementary shall be effective at the time the
Maryland State Department of Assessments and Taxation accepts these Articles
Supplementary for record.
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IN WITNESS WHEREOF, the Trust has caused these Articles Supplementary to
be signed in its name and on its behalf by its Chief Financial Officer and
Executive Vice President and witnessed by its Assistant Secretary on September
29, 2004.
WITNESS: RAIT INVESTMENT TRUST
/s/ Milly Cashman By: /s/ Ellen J. DiStefano
- ------------------------------- ------------------------------
Name: Milly Cashman Name: Ellen J. DiStefano
Title: Assistant Secretary Title: Chief Financial Officer and
Executive Vice President
THE UNDERSIGNED, Chief Financial Officer and Executive Vice President of
RAIT Investment Trust, who executed on behalf of the Trust the Articles
Supplementary of which this Certificate is made a part, hereby acknowledges in
the name and on behalf of said Trust the foregoing Articles Supplementary to be
the act of said Trust and hereby certifies that the matters and facts set forth
herein with respect to the authorization and approval thereof are true in all
material respects under penalties of perjury.
/s/ Ellen J. DiStefano
-----------------------------
Ellen J. DiStefano
Chief Financial Officer and
Executive Vice President
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