**Exhibit 3.1**

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**DEERFIELD TRIARC CAPITAL CORP.**

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**ARTICLESOF AMENDMENT AND RESTATEMENT**

 

FIRST: Deerfield Triarc Capital Corp., aMaryland corporation (the “Corporation”), desires to amend and restate itscharter (the “Charter”) as currently in effect and as hereinafter amended.

 

SECOND: The following provisions are all theprovisions of the Charter currently in effect and as hereinafter amended.

 

**ARTICLEI**

 

**NAME**

 

The name of thecorporation (which is hereinafter called the “Corporation”) is: DeerfieldTriarc Capital Corp.

 

**ARTICLEII**

 

**PURPOSE**

 

The purposes for whichthe Corporation is formed are to engage in any lawful act or activity(including, without limitation or obligation, engaging in business as a realestate investment trust under the Internal Revenue Code of 1986, as amended, orany successor statute (the “Code”)) for which corporations may be organizedunder the general laws of the State of Maryland as now or hereafter in force.For purposes of this charter of the Corporation (the “Charter”), “REIT” means areal estate investment trust under Sections 856 through 860 of the Code.The foregoing enumerated purposes and objects shall be in no way limited orrestricted by reference to, or inference from, the terms of any other clause ofthis or any other article of the Charter and each shall be regarded asindependent; and they are intended to be and shall be construed as powers aswell as purposes and objects of the Corporation and shall be in addition

 

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to and not in limitationof the general powers of corporations under the General Laws of the State ofMaryland.

 

**ARTICLEIII**

 

**RESIDENTAGENT AND PRINCIPAL OFFICE IN MARYLAND**

 

The address of theprincipal office of the Corporation in this State is c/o CSC LawyersIncorporating Service Company, 11 East Chase Street, Baltimore, Maryland 21202.The name and address of the resident agent of the Corporation are CSC LawyersIncorporating Service Company, 11 East Chase Street, Baltimore, Maryland 21202.The resident agent is a Maryland corporation.

 

**ARTICLEIV**

 

**PROVISIONSFOR DEFINING, LIMITINGAND REGULATING CERTAIN POWERS OF THECORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS**

 

Section 4.1 Numberof Directors. The business and affairs of the Corporation shall be managedunder the direction of the Board of Directors. The number of directors of theCorporation shall be three, which number may be increased or decreased only bythe Board of Directors pursuant to the Bylaws of the Corporation (the“Bylaws”), but shall never be less than the minimum number required by theMaryland General Corporation Law, or any successor statute (the “MGCL”). Thenames of the directors who shall serve until the first annual meeting ofstockholders and until their successors are duly elected and qualify are:

 

Nelson Peltz

 

Gregory H. Sachs

 

Jonathan W.Trutter

 

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The directors mayincrease the number of directors and may fill any vacancy, whether resultingfrom an increase in the number of directors or otherwise, on the Board ofDirectors in the manner provided in the Bylaws.

 

Beginning on the InitialDate (as hereinafter defined), the directors (other than any director electedsolely by holders of one or more classes or series of Preferred Stock) shall beclassified, with respect to the terms for which they severally hold office,into three classes, one class to hold office initially for a term expiring atthe annual meeting of stockholders in 2005, another class to hold officeinitially for a term expiring at the annual meeting of stockholders in 2006 andanother class to hold office initially for a term expiring at the annualmeeting of stockholders in 2007, with the members of each class to hold officeuntil their successors are duly elected and qualify. At each annual meeting ofthe stockholders, the successors to the class of directors whose term expiresat such meeting shall be elected to hold office for a term expiring at theannual meeting of stockholders held in the third year following the year oftheir election and until their successors are duly elected and qualify.

 

The Corporation elects,at such time as it becomes eligible to make the election provided for under Section 3-802(b) ofthe MGCL, that, except as may be provided by the Board of Directors in settingthe terms of any class or series of stock, any and all vacancies on the Boardof Directors may be filled only by the affirmative vote of a majority of theremaining directors in office, even if the remaining directors do notconstitute a quorum, and any director elected to fill a vacancy shall serve forthe remainder of the full term of the directorship in which such vacancyoccurred.

 

Section 4.2 ExtraordinaryActions. Except as specifically provided in Section 4.8 (relating toremoval of directors) and in Article VII, notwithstanding any provision oflaw

 

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permitting or requiringany action to be taken or approved by the affirmative vote of the holders ofshares entitled to cast a greater number of votes, any such action shall beeffective and valid if declared advisable by the Board of Directors and takenor approved by the affirmative vote of holders of shares entitled to cast amajority of all the votes entitled to be cast on the matter.

 

Section 4.3 Authorizationby Board of Stock Issuance. The Board of Directors may authorize theissuance from time to time of shares of stock of the Corporation of any classor series, whether now or hereafter authorized, or securities or rightsconvertible into shares of its stock of any class or series, whether now orhereafter authorized, for such consideration as the Board of Directors may deemadvisable (or without consideration in the case of a stock split or stockdividend), subject to such restrictions or limitations, if any, as may be setforth in the Charter or the Bylaws.

 

Section 4.4 PreemptiveRights and Appraisal Rights. Except as may be provided by the Board ofDirectors in setting the terms of classified or reclassified shares of stockpursuant to Section 5.4 or as may otherwise be provided by contractapproved by the Board of Directors, no holder of shares of stock of the Corporationshall, as such holder, have any preemptive right to purchase or subscribe forany additional shares of stock of the Corporation or any other security of theCorporation which it may issue or sell. Holders of shares of stock shall not beentitled to exercise any rights of an objecting stockholder provided for underTitle 3, Subtitle 2 of the MGCL unless the Board of Directors, upon theaffirmative vote of a majority of the Board of Directors, shall determine thatsuch rights apply, with respect to all or any classes or series of stock, toone or more transactions occurring after the date of such determination inconnection with which holders of such shares would otherwise be entitled toexercise such rights.

 

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Section 4.5 Indemnification.(a) The Corporation shall have the power, to the maximum extent permittedby Maryland law in effect from time to time, to obligate itself to indemnify,and to pay or reimburse reasonable expenses in advance of final disposition ofa proceeding to, (i) any individual who is a present or former director orofficer of the Corporation or (ii) any individual who, while a director orofficer of the Corporation and at the request of the Corporation, serves or hasserved as a director, officer, partner or trustee of another corporation, realestate investment trust, partnership, joint venture, trust, employee benefitplan or any other enterprise from and against any claim or liability to whichsuch person may become subject or which such person may incur by reason of his orher service in any of the foregoing capacities. The Corporation shall have thepower, with the approval of the Board of Directors, to provide suchindemnification and advancement of expenses to a person who served apredecessor of the Corporation in any of the capacities described in (i) or(ii) above and to any employee or agent of the Corporation or apredecessor of the Corporation.

 

(b) The Corporationmay, to the fullest extent permitted by law, purchase and maintain insurance onbehalf of any person described in the preceding paragraph against any liabilitywhich may be asserted against such person.

 

(c) Theindemnification provided herein shall not be deemed to limit the right of theCorporation to indemnify any other person for any such expenses to the fullestextent permitted by law, nor shall it be deemed exclusive of any other rightstoo which any person seeking indemnification from the Corporation may beentitled under any agreement, vote of stockholders or disinterested directors,or otherwise, both as to action in such persons official capacity and as toaction in another capacity while holding such office.

 

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Section 4.6 Determinationsby Board. The determination as to any of the following matters, made ingood faith by or pursuant to the direction of the Board of Directors consistentwith the Charter, shall be final and conclusive and shall be binding upon theCorporation and every holder of shares of its stock: the amount of the netincome of the Corporation for any period and the amount of assets at any timelegally available for the payment of dividends, redemption of its stock or thepayment of other distributions on its stock; the amount of paid-in surplus, netassets, net profits, other surplus, annual or other net profit, cash flow, fundsfrom operations, net assets in excess of capital, undivided profits or excessof profits over losses on sales of assets; the amount, purpose, time ofcreation, increase or decrease, alteration or cancellation of any reserves orcharges and the propriety thereof (whether or not any obligation or liabilityfor which such reserves or charges shall have been created shall have been paidor discharged); any interpretation of the terms, preferences, conversion orother rights, voting powers or rights, restrictions, limitations as todividends or distributions, qualifications or terms or conditions of redemptionof any class or series of stock of the Corporation; the fair value, or anysale, bid or asked price to be applied in determining the fair value, of any assetowned or held by the Corporation or of any shares of stock of the Corporation;the number of shares of stock of any class of the Corporation; any matterrelating to the acquisition, holding and disposition of any assets by theCorporation; or any other matter relating to the business and affairs of theCorporation or required or permitted by applicable law, the Charter or Bylawsor otherwise to be determined by the Board of Directors.

 

Section 4.7 REITQualification. If the Board of Directors determines that it is no longer inthe best interests of the Corporation to continue to be qualified as a REIT,the Board of Directors may revoke or otherwise terminate the Corporation’s REITelection pursuant to

 

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Section 856(g) ofthe Code. The Board of Directors also may determine that compliance with anyrestriction or limitation on stock ownership and transfers set forth in Article VIis no longer required for REIT qualification.

 

Section 4.8 Removalof Directors. Subject to the rights of holders of one or more classes orseries of Preferred Stock to elect or remove one or more directors, anydirector, or the entire Board of Directors, may be removed from office at anytime, but only for cause and then only by the affirmative vote of at leasttwo-thirds of the votes entitled to be cast generally in the election ofdirectors. For the purpose of this paragraph, “cause” shall mean, with respectto any particular director, conviction of a felony or a final judgment of acourt of competent jurisdiction holding that such director caused demonstrable,material harm to the Corporation through bad faith or active and deliberatedishonesty.

 

**ARTICLEV**

 

**STOCK**

 

Section 5.1 AuthorizedShares. The Corporation has authority to issue 600,000,000 shares of stock,consisting of 500,000,000 shares of Common Stock, $0.001 par value per share(“Common Stock”), and 100,000,000 shares of Preferred Stock, $0.001 par valueper share (“Preferred Stock”). The aggregate par value of all authorized sharesof stock having par value is $600,000.00. If shares of one class of stock areclassified or reclassified into shares of another class of stock pursuant tothis Article V, the number of authorized shares of the former class shallbe automatically decreased and the number of shares of the latter class shallbe automatically increased, in each case by the number of shares so classifiedor reclassified, so that the aggregate number of shares of stock of all classesthat the Corporation has authority to issue shall not be more than the total numberof shares of stock set forth in the first sentence of this

 

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paragraph. The Board ofDirectors, with the approval of a majority of the entire Board of Directors,without any action by the stockholders of the Corporation, may amend theCharter from time to time to increase or decrease the aggregate number ofshares of stock or the number of shares of stock of any class or series thatthe Corporation has authority to issue.

 

Section 5.2 CommonStock. Subject to the provisions of Article VI and except as mayotherwise be specified in the terms of any class or series of Common Stock,each share of Common Stock shall entitle the holder thereof to one vote. TheBoard of Directors may reclassify any unissued shares of Common Stock from timeto time in one or more classes or series of stock.

 

Section 5.3 PreferredStock. The Board of Directors may classify any unissued shares of PreferredStock and reclassify any previously classified but unissued shares of PreferredStock of any series from time to time, in one or more classes or series ofstock.

 

Section 5.4 Classifiedor Reclassified Shares. Prior to issuance of classified or reclassifiedshares of any class or series, the Board of Directors by resolution shall: (a) designatethat class or series to distinguish it from all other classes and series ofstock of the Corporation; (b) specify the number of shares to be includedin the class or series; (c) set or change, subject to the provisions of Article VIand subject to the express terms of any class or series of stock of theCorporation outstanding at the time, the preferences, conversion or otherrights, voting powers, restrictions, including, without limitation,restrictions on transferability, limitations as to dividends or otherdistributions, qualifications and terms and conditions of redemption for eachclass or series; and (d) cause the Corporation to file articlessupplementary with the State Department of Assessments and Taxation of Maryland(“SDAT”). Any of the terms of any class or series of stock set or changedpursuant to clause (c) of this Section 5.4 may be made

 

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dependent upon facts orevents ascertainable outside the Charter (including determinations by the Boardof Directors or other facts or events within the control of the Corporation)and may vary among holders thereof, provided that the manner in which suchfacts, events or variations shall operate upon the terms of such class orseries of stock is clearly and expressly set forth in the articlessupplementary or other Charter document accepted for record by SDAT.

 

Section 5.5 Charterand Bylaws. The rights of all stockholders and the terms of all stock aresubject to the provisions of this Charter and the Bylaws.

 

**ARTICLEVI**

 

**RESTRICTIONON TRANSFER AND OWNERSHIP OF SHARES**

 

Section 6.1 Definitions.For the purpose of this Article VI, the following terms shall have thefollowing meanings:

 

BeneficialOwnership. Theterm “Beneficial Ownership” shall mean ownership of Capital Stock by a Person,whether the interest in the shares of Capital Stock is held directly orindirectly (including by a nominee), and shall include interests that would betreated as owned through the application of Section 544 of the Code, asmodified by Section 856(h)(1)(B) and 856(h)(3)(A) of the Code.The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned”shall have the correlative meanings.

 

Benefit PlanInvestor. Theterm “Benefit Plan Investor” shall mean any holder of shares of Capital Stockthat is (i) an employee benefit plan (as defined in Section 3(3) ofthe Employee Retirement Income Security Act of 1974, as amended (“ERISA”)),whether or not it is subject to the provisions of Title I of ERISA; (ii) aplan as defined in Section 4975(e) of the Code (any such employeebenefit plan or “plan” described in clause (i) or this clause (ii) being

 

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referred to herein as a“Plan”); (iii) an entity whose underlying assets include (or are deemed toinclude under ERISA or Section 4975(e) of the Code) assets of a Planby reason of such Plan’s investment in such entity or (iv) any otherentity that otherwise constitutes a benefit plan investor within the meaning ofthe Plan Asset Regulations.

 

Business Day. The term “Business Day” shall mean anyday other than a Saturday, a Sunday or a day on which banking institutions inthe State of Illinois are authorized or obligated by law or executive order toclose.

 

Capital Stock. The term “Capital Stock” shall mean allclasses or series of stock of the Corporation, including, without limitation,Common Stock and Preferred Stock.

 

CharitableBeneficiary. Theterm “Charitable Beneficiary” shall mean one or more beneficiaries of theCharitable Trust as determined pursuant to Section 6.3.6, provided thateach such organization must be described in Section 501(c)(3) of theCode and contributions to each such organization must be eligible for deductionunder one of Sections 170(b)(1)(A), 2055 and 2522 of the Code.

 

Charitable Trust. The term “Charitable Trust” shall meanany trust provided for in Section 6.3.1.

 

Code. The term “Code” shall mean the InternalRevenue Code of 1986, as amended from time to time.

 

ConstructiveOwnership. Theterm “Constructive Ownership” shall mean ownership of Capital Stock by aPerson, whether the interest in the shares of Capital Stock is held directly orindirectly (including by a nominee), and shall include interests that would betreated as owned through the application of Section 318(a) of theCode, as modified by Section

 

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856(d)(5) of theCode. The terms “Constructive Owner,” “Constructively Owns” and “ConstructivelyOwned” shall have the correlative meanings.

 

Controlling Person. The term “Controlling Person” shallmean a Person who has discretionary authority or control with respect to theassets of the Corporation or who provides investment advice to the Corporationfor a fee (direct or indirect) with respect to such assets, and any affiliateof such Person.

 

Excepted Holder. The term “Excepted Holder” shall mean aPerson for whom an Excepted Holder Limit is created by the Charter or by theBoard of Directors pursuant to Section 6.2.7, and shall include, but shallnot be limited to Ross Financial Corporation and W. A. Dart Foundation, as longas the Excepted Holder Limits for Ross Financial Corporation and W. A. DartFoundation (described below) remain in effect pursuant to their terms.

 

Excepted HolderLimit. The term“Excepted Holder Limit” shall mean, provided that the affected Excepted Holderagrees to comply with the requirements established by the Charter or by theBoard of Directors pursuant to Section 6.2.7 and subject to adjustmentpursuant to Section 6.2.8, the percentage limit established for anExcepted Holder by the Charter or by the Board of Directors pursuant to Section 6.2.7.Subject to adjustment pursuant to Section 6.2.8, the Excepted Holder Limitfor Ross Financial Corporation shall be thirty-two and forty-six hundredthspercent (32.46%) in value or in number of shares, whichever is morerestrictive, of the outstanding shares of Common Stock. Subject to adjustmentpursuant to Section 6.2.8, the Excepted Holder Limit for W. A. DartFoundation shall be five and five hundredths percent (5.05%) in value or innumber of shares, whichever is more restrictive, of the outstanding shares ofCommon Stock.

 

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Initial Date. The term “Initial Date” shall mean thedate of the closing of the issuance of Common Stock pursuant to the initialoffering and placement transaction between the Corporation and the InitialPurchasers.

 

Initial Purchasers. The term “Initial Purchasers” shallmean Credit Suisse First Boston LLC, Deutsche Bank Securities Inc., Bear,Stearns & Co. Inc., Stifel, Nicolaus & Company, Incorporated,Flagstone Securities, and JMP Securities LLC.

 

InsignificantParticipation Exception. The term “Insignificant Participation Exception” shall mean theexception to the Plan Asset Regulations which provides that a Benefit PlanInvestor’s assets will not include any of the underlying assets of an entity inwhich it invests if at all times less than 25% of the value of each class ofequity interests in the entity is held by one or more Benefit Plan Investors.

 

Market Price. The term “Market Price” on any dateshall mean, with respect to any class or series of outstanding shares ofCapital Stock, the Closing Price for such Capital Stock on such date. The“Closing Price” on any date shall mean the last reported sale price for suchCapital Stock, regular way, or, in case no such sale takes place on such day,the average of the closing bid and asked prices, regular way, for such CapitalStock, in either case as reported in the principal consolidated transactionreporting system with respect to securities listed or admitted to trading onthe NYSE or, if such Capital Stock is not listed or admitted to trading on theNYSE, as reported on the principal consolidated transaction reporting systemwith respect to securities listed on the principal national securities exchangeon which such Capital Stock is listed or admitted to trading or, if suchCapital Stock is 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

 

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of Securities Dealers, Inc.Automated Quotation System or, if such system is no longer in use, the principalother automated quotation system that may then be in use or, if such CapitalStock is not quoted by any such organization, the average of the closing bidand asked prices as furnished by a professional market maker making a market insuch Capital Stock selected by the Board of Directors of the Corporation or, inthe event that no trading price is available for such Capital Stock, the fairmarket value of the Capital Stock, as determined in good faith by the Board ofDirectors of the Corporation.

 

NYSE. The term “NYSE” shall mean the New YorkStock Exchange.

 

Person. The term “Person” shall mean anindividual, corporation, partnership, limited liability company, estate, trust(including a trust qualified under Sections 401(a) or 501(c)(17) of the Code),a portion of a trust permanently set aside for or to be used exclusively forthe purposes described in Section 642(c) of the Code, association,private foundation within the meaning of Section 509(a) of the Code,joint stock company or other entity and also includes a “group” as that term isused for purposes of Section 13(d)(3) of the Securities Exchange Actof 1934, as amended, and a group to which an Excepted Holder Limit applies.

 

Plan AssetRegulations. Theterm “Plan Asset Regulations” shall mean Section 2510.3-101 of theregulations of the Department of Labor.

 

Prohibited Owner. The term “Prohibited Owner” shall mean,with respect to any purported Transfer (or other event), any Person who, butfor the provisions of Section 6.2.1, would Beneficially Own orConstructively Own shares of Capital Stock in violation of the provisions of Section 6.2.1(a),and if appropriate in the context, shall also mean any Person who would havebeen the record owner of the shares of Capital Stock that the Prohibited Ownerwould have so owned.

 

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Publicly OfferedSecurities. Theterm “Publicly Offered Securities” shall have the meaning provided in Section 2510.3-101(b)(2) ofthe Plan Asset Regulations, or any successor regulation thereto.

 

REIT. The term “REIT”shall mean a real estate investment trust within the meaning of Section 856of the Code.

 

RestrictionTermination Date.The term “Restriction Termination Date” shall mean the first day after theInitial Date on which the Corporation determines pursuant to Section 4.7of the Charter that it is no longer in the best interests of the Corporation toattempt to, or continue to, qualify as a REIT or that compliance with therestrictions and limitations on Beneficial Ownership, Constructive Ownershipand Transfers of shares of Capital Stock set forth herein is no longer requiredin order for the Corporation to qualify as a REIT.

 

Stock OwnershipLimit. The term“Stock Ownership Limit” shall mean four and one-tenths percent (4.1%) in valueor in number of shares, whichever is more restrictive, of the outstandingshares of any class or series of Capital Stock of the Corporation excluding anyoutstanding shares of Capital Stock not treated as outstanding for federalincome tax purposes, or such other percentage determined by the Board ofDirectors in accordance with Section 6.2.8 of the Charter.

 

Transfer. The term “Transfer” shall mean anyissuance, sale, transfer, gift, assignment, devise or other disposition, aswell as any other event that causes any Person to acquire Beneficial Ownershipor Constructive Ownership, or any agreement to take any such actions or causeany such events, of Capital Stock or the right to vote or receive dividends onCapital Stock, including (a) the granting or exercise of any option (orany disposition of any option), (b) any disposition of any securities orrights convertible into or exchangeable for

 

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Capital Stock or anyinterest in Capital Stock or any exercise of any such conversion or exchangeright and (c) Transfers of interests in other entities that result inchanges in Beneficial or Constructive Ownership of Capital Stock; in each case,whether voluntary or involuntary, whether owned of record, Constructively Ownedor Beneficially Owned and whether by operation of law or otherwise. The terms“Transferring” and “Transferred” shall have the correlative meanings.

 

Trustee. The term “Trustee” shall mean thePerson unaffiliated with the Corporation and a Prohibited Owner, that isappointed by the Corporation to serve as trustee of the Charitable Trust.

 

Section 6.2 CapitalStock.

 

Section 6.2.1 OwnershipLimitations. During the period commencing on the Initial Date and prior tothe Restriction Termination Date and subject to Section 6.4:

 

(a) BasicRestrictions.

 

(i) (1) NoPerson, other than an Excepted Holder, shall Beneficially Own or ConstructivelyOwn shares of Capital Stock in excess of the Stock Ownership Limit and (2) noneof Ross Financial Corporation, W. A. Dart Foundation or any other ExceptedHolder shall Beneficially Own or Constructively Own shares of Capital Stock inexcess of the Excepted Holder Limit for such Excepted Holder.

 

(ii) Except asprovided in Section 6.2.7 hereof, no Person shall Beneficially Own sharesof Capital Stock to the extent that such Beneficial Ownership of Capital Stockwould result in the Corporation being “closely held” within the meaning of Section 856(h) ofthe Code (without regard to whether the ownership interest is held

 

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during the last half of ataxable year) or would otherwise cause the Company to fail to qualify as aREIT.

 

(iii) Except asprovided in Section 6.2.7 hereof, no person shall Transfer shares ofCapital Stock to the extent such transfer would result in the Capital Stockbeing beneficially owned by less than one hundred (100) Persons (determinedunder the principles of Section 856(a)(5) of the Code).

 

(iv) Except asprovided in Section 6.2.7 hereof, during the period commencing on theInitial Date and prior to the date that either (i) each class or series ofCapital Stock qualifies as a class of Publicly-Offered Securities or (ii) theCorporation qualifies for another exception to the Plan Asset Regulations(other than the Insignificant Participation Exception), no Person shallTransfer shares of Capital Stock to the extent such Transfer would result in25% or more of such class of Capital Stock being beneficially owned by one ormore Benefit Plan Investors, disregarding, for purposes of such determination,Capital Stock held by persons (other than Benefit Plan Investors) who havediscretionary authority or control with respect to the Corporation’s assets orwho provide investment advice for a fee (direct or indirect) with respect tothe Corporation’s assets, and their affiliates.

 

(v) Except asprovided in Section 6.2.7 hereof, during the period commencing on theInitial Date and prior to the date each class or series of Capital Stockqualifies as a class of Publicly-Offered Securities, no Person shall Transfershares of Capital Stock unless such Person obtains from its transferee a representationand agreement that (i) its transferee is not (and will not be), and is notacting on behalf of, a Benefit Plan Investor or Controlling Person and (ii) suchtransferee will obtain from its transferee the representation and agreement setforth in this sentence (including without limitation clauses (i) and(ii)).

 

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(b) Transfer inTrust/Transfer Void Ab Initio. If any Transfer of shares of Capital Stock(or other event) occurs which, if effective, would result in any PersonBeneficially Owning or Constructively Owning shares of Capital Stock inviolation of Section 6.2.1(a)(i), (ii), (iii), (iv), or (v),

 

(i) then that numberof shares of the Capital Stock the Beneficial or Constructive Ownership ofwhich otherwise would cause such Person to violate Section 6.2.1(a)(i),(ii), (iii), (iv), or (v) (rounded up to the nearest whole share) shall beautomatically transferred to a Charitable Trust for the benefit of a CharitableBeneficiary, as described in Section 6.3, effective as of the close ofbusiness on the Business Day prior to the date of such Transfer (or otherevent), and such Person shall acquire no rights in such shares of CapitalStock; or

 

(ii) if the transferto the Charitable Trust described in clause (i) of this sentence would notbe effective for any reason to prevent the violation of Section 6.2.1(a)(i),(ii), (iii), (iv), or (v), then the Transfer of that number of shares ofCapital Stock that otherwise would cause any Person to violate Section 6.2.1(a)(i),(ii), (iii), (iv), or (v), shall be void ab initio , and the intendedtransferee shall acquire no rights in such shares of Capital Stock.

 

Section 6.2.2 Remediesfor Breach. If the Board of Directors of the Corporation or any dulyauthorized committee thereof or other designees if permitted by the MGCL shallat any time determine in good faith that a Transfer or other event has takenplace that results in a violation of Section 6.2.1 or that a Personintends to acquire or has attempted to acquire Beneficial or ConstructiveOwnership of any shares of Capital Stock in violation of Section 6.2.1(whether or not such violation is intended), the Board of Directors or acommittee

 

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thereof or otherdesignees if permitted by the MGCL shall take such action as it deems advisableto refuse to give effect to or to prevent such Transfer or other event,including, without limitation, causing the Corporation to redeem shares ofCapital Stock, refusing to give effect to such Transfer on the books of theCorporation or instituting proceedings to enjoin such Transfer or other event; provided,however, that any Transfers or attempted Transfers or other events inviolation of Section 6.2.1 shall automatically result in the transfer tothe Charitable Trust described above, or, where applicable, such Transfer (orother event) shall be void ab initio as provided above irrespective of anyaction (or non-action) by the Board of Directors or a committee thereof.

 

Section 6.2.3 Noticeof Restricted Transfer. Any Person who acquires or attempts or intends toacquire Beneficial Ownership or Constructive Ownership of shares of CapitalStock that will or may violate Section 6.2.1(a) or any Person whowould have owned shares of Capital Stock that resulted in a transfer to theCharitable Trust pursuant to the provisions of Section 6.2.1(b) shallimmediately give written notice to the Corporation of such event, or in thecase of such a proposed or attempted transaction, give at least fifteen(15) days prior written notice, and shall provide to the Corporation suchother information as the Corporation may request in order to determine theeffect, if any, of such Transfer on the Corporation’s status as a REIT.

 

Section 6.2.4 OwnersRequired To Provide Information. From the Initial Date and prior to theRestriction Termination Date:

 

(a) Every owner ofmore than five percent (5%) (or such lower percentage as required by the Codeor the Treasury Regulations promulgated thereunder) in number or value of theoutstanding shares of Capital Stock, within thirty (30) days after the end

 

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of each taxable year,shall give written notice to the Corporation stating the name and address ofsuch owner, the number of shares of Capital Stock Beneficially Owned and adescription of the manner in which such shares are held. Each such owner shallprovide to the Corporation such additional information as the Corporation mayrequest in order to determine the effect, if any, of such Beneficial Ownershipon the Corporation’s status as a REIT and to ensure compliance with the StockOwnership Limit; and

 

(b) Each Person whois a Beneficial or Constructive Owner of Capital Stock and each Person(including the stockholder of record) who is holding Capital Stock for aBeneficial or Constructive Owner shall provide to the Corporation suchinformation as the Corporation may request, in good faith, in order todetermine the Corporation’s status as a REIT and to comply with requirements ofany taxing authority or governmental authority or to determine such complianceand to ensure compliance with the Stock Ownership Limit.

 

Section 6.2.5 RemediesNot Limited. Nothing contained in this Section 6.2 shall limit theauthority of the Board of Directors of the Corporation to take such otheraction as it deems necessary or advisable to (a) subject to Section 4.7of the Charter, protect the Corporation and the interests of its stockholdersin preserving the Corporation’s status as a REIT or (b) avoid having theassets of the Corporation being considered to be “plan assets” (within themeaning of the Plan Asset Regulations) of any stockholder.

 

Section 6.2.6 Ambiguity.In the case of an ambiguity in the application of any of the provisions of thisArticle VI, including any definition contained in Section 6.1 of thisArticle VI, the Board of Directors shall have the power to determine theapplication of the provisions of this Article VI with respect to anysituation based on the facts known to it. In the event Section 6.2 or 6.3requires an action by the Board of Directors and the Charter fails to

 

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provide specific guidancewith respect to such action, the Board of Directors shall have the power todetermine the action to be taken so long as such action is not contrary to theprovisions of Sections 6.1, 6.2 or 6.3. Absent a decision to the contrary bythe Board of Directors (which the Board may make in its sole and absolutediscretion), if a Person would have (but for the remedies set forth in Section 6.2.1)acquired Beneficial or Constructive Ownership of Capital Stock in violation of Section 6.2.1,such remedies (as applicable) shall apply first to the shares of Capital Stockwhich, but for such remedies, would have been actually owned by such Person,and second to shares of Capital Stock which, but for such remedies, would havebeen Beneficially Owned or Constructively Owned (but not actually owned) bysuch Person, pro rata among the Persons who actually own such shares of CapitalStock based upon the relative number of the shares of Capital Stock held byeach such Person.

 

Section 6.2.7 Exceptions.

 

(a) The Board ofDirectors of the Corporation, in its sole discretion, may exempt (prospectivelyor retroactively) a Person from the Stock Ownership Limit and/or therestrictions contained in Section 6.2.1(a)(ii), (iii), (iv), or (v), asthe case may be, and may establish or increase an Excepted Holder Limit forsuch Person if the Board of Directors obtains such representations, covenantsand undertakings as the Board of Directors may deem appropriate in order toconclude that granting the exemption and/or establishing or increasing theExcepted Holder Limit, as the case may be, will not cause the Corporation tolose its status as a REIT in the case of an exemption or Excepted Holder Limitrelating to Section 6.2.1(a)(i), (ii), and (iii) or cause any assetsof the Corporation to be treated as plan assets under the Plan AssetRegulations in the case of an exemption relating to Section 6.2.1(a)(iv) and(v).

 

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(b) Prior togranting any exception pursuant to Section 6.2.7(a), the Board ofDirectors of the Corporation may require a ruling from the Internal RevenueService, or an opinion of counsel, in either case in form and substancesatisfactory to the Board of Directors in its sole discretion, as it may deemnecessary or advisable in order to (i) determine the Corporation’s statusas a REIT or (ii) in the case of an exception from Section 6.2.1(a)(iv) or(v), determine that the Corporation will not fail to qualify for theInsignificant Participation Exception or another applicable exception to thePlan Asset Regulations. Notwithstanding the receipt of any ruling or opinion,the Board of Directors may impose such conditions or restrictions as it deemsappropriate in connection with granting such exception.

 

(c) Subject to Section 6.2.1.(a)(ii),an underwriter or placement agent that participates in a public offering or aprivate placement of Capital Stock (or securities convertible into orexchangeable for Capital Stock) may Beneficially Own or Constructively Ownshares of Capital Stock (or securities convertible into or exchangeable forCapital Stock) in excess of the Stock Ownership Limit, but only to the extentnecessary to facilitate such public offering or private placement and providedthat the restrictions contained in Section 6.2.1(a) will not beviolated following the distribution by such underwriter or placement agent ofsuch shares of Capital Stock.

 

Section 6.2.8 Changein Common Stock Ownership Limit and Excepted Holder Limits For Ross FinancialCorporation and W. A. Dart Foundation. (a) The Board of Directors mayfrom time to time increase or decrease the Stock Ownership Limit; provided,however, that a decreased Stock Ownership Limit will not be effective for anyPerson whose percentage ownership of Capital Stock is in excess of suchdecreased Stock Ownership Limit until such time as such Person’s percentage ofCapital Stock equals or falls below the decreased

 

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Stock Ownership Limit,but until such time as such Person’s percentage of Capital Stock falls belowsuch decreased Stock Ownership Limit, any further acquisition of Capital Stockwill be in violation of the Stock Ownership Limit and, provided further, thatthe new Stock Ownership Limit would not allow five or fewer Persons (takinginto account all Excepted Holders) to Beneficially Own more than 49.9% in valueof the outstanding Capital Stock.

 

(b) Except asprovided in Section 6.2.8(c) and 6.2.8(d) hereof, the Board ofDirectors may only reduce the Excepted Holder Limit for an Excepted Holder: (1) withthe written consent of such Excepted Holder at any time, or (2) pursuantto the terms and conditions of the agreements and undertakings entered intowith such Excepted Holder in connection with the establishment of the ExceptedHolder Limit for that Excepted Holder. No Excepted Holder Limit shall bereduced to a percentage that is less than the then Stock Ownership Limit.

 

(c) If at any timeRoss Financial Corporation’s ownership of the Common Stock falls belowthirty-two and forty-six hundredths percent (32.46%) of the outstanding sharesof Common Stock and upon any reduction by Ross Financial Corporation in theownership of Common Stock thereafter, the Board of Directors shall have thediscretion to reduce the Excepted Holder Limit for Ross Financial Corporationand to increase the Stock Ownership Limit from time to time until the StockOwnership Limit is nine and eight-tenths percent (9.8%) in value or in numberof shares, whichever is more restrictive, of the outstanding shares of anyclass or series of Capital Stock.

 

(d) If at any timeW. A. Dart Foundation’s ownership of the Common Stock falls below five and fivehundredths percent (5.05%) of the outstanding shares of Common Stock and uponany reduction by W. A. Dart Foundation in the ownership of Common

 

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Stock thereafter, theBoard of Directors shall have the discretion to reduce the Excepted HolderLimit for W. A. Dart Foundation to a percentage that is not less than the thenStock Ownership Limit.

 

Section 6.2.9 Legend.Each certificate for shares of Capital Stock shall bear a legend summarizingthe restrictions on transfer and ownership contained herein. Instead of alegend, the certificate may state that the Corporation will furnish a fullstatement about certain restrictions on transferability to a stockholder onrequest and without charge.

 

Section 6.3 Transferof Capital Stock in Trust.

 

Section 6.3.1 Ownershipin Trust. Upon any purported Transfer or other event described in Section 6.2.1(b) thatwould result in a transfer of shares of Capital Stock to a Charitable Trust,such shares of Capital Stock shall be deemed to have been transferred to theTrustee as trustee for the exclusive benefit of one or more CharitableBeneficiaries. Such transfer to the Trustee shall be deemed to be effective asof the close of business on the Business Day prior to the purported Transfer orother event that results in the transfer to the Charitable Trust pursuant to Section 6.2.1(b).The Trustee shall be appointed by the Corporation and shall be a Personunaffiliated with the Corporation and any Prohibited Owner. Each CharitableBeneficiary shall be designated by the Corporation as provided in Section 6.3.6.

 

Section 6.3.2 Statusof Shares Held by the Trustee. Shares of Capital Stock held by the Trusteeshall continue to be issued and outstanding shares of Capital Stock of theCorporation. The Prohibited Owner shall have no rights in the Capital Stockheld by the Trustee. The Prohibited Owner shall not benefit economically fromownership of any shares held in trust by the Trustee, shall have no rights to dividendsor other distributions and shall not possess any rights to vote or other rightsattributable to the shares held in the Charitable Trust.

 

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Section 6.3.3 Dividendand Voting Rights. The Trustee shall have all voting rights and rights todividends or other distributions with respect to shares of Capital Stock heldin the Charitable Trust, which rights shall be exercised for the exclusivebenefit of the Charitable Beneficiary. Any dividend or other distribution paidto a Prohibited Owner prior to the discovery by the Corporation that the sharesof Capital Stock have been transferred to the Trustee shall be paid withrespect to such shares of Capital Stock by the Prohibited Owner to the Trusteeupon demand and any dividend or other distribution authorized but unpaid shallbe paid when due to the Trustee. Any dividends or distributions so paid over tothe Trustee shall be held in trust for the Charitable Beneficiary. TheProhibited Owner shall have no voting rights with respect to shares held in theCharitable Trust and, subject to Maryland law, effective as of the date thatthe shares of Capital Stock have been transferred to the Trustee, the Trusteeshall have the authority (at the Trustee’s sole discretion) (i) to rescindas void any vote cast by a Prohibited Owner prior to the discovery by theCorporation that the shares of Capital Stock have been transferred to theTrustee and (ii) to recast such vote in accordance with the desires of theTrustee acting for the benefit of the Charitable Beneficiary; provided ,however , that if the Corporation has already taken irreversible corporateaction, then the Trustee shall not have the authority to rescind and recastsuch vote. Notwithstanding the provisions of this Article VI, until theCorporation has received notification that shares of Capital Stock have beentransferred into a Charitable Trust, the Corporation shall be entitled to relyon its share transfer and other stockholder records for purposes of preparinglists of stockholders entitled to vote at meetings, determining the validityand authority of proxies and otherwise conducting votes of stockholders.

 

Section 6.3.4 Saleof Shares by Trustee. Within twenty (20) days of receiving notice fromthe Corporation that shares of Capital Stock have been transferred to the

 

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Charitable Trust, theTrustee of the Charitable Trust shall sell the shares held in the CharitableTrust to a person, designated by the Trustee, whose ownership of the shareswill not violate the ownership limitations set forth in Section 6.2.1(a).Upon such sale, the interest of the Charitable Beneficiary in the shares soldshall terminate and the Trustee shall distribute the net proceeds of the saleto the Prohibited Owner and to the Charitable Beneficiary as provided in this Section 6.3.4.The Prohibited Owner shall receive the lesser of (1) the price paid by theProhibited Owner for the shares or, if the Prohibited Owner did not give valuefor the shares in connection with the event causing the shares to be held inthe Charitable Trust ( e.g. , in the case of a gift, devise or other suchtransaction), the Market Price of the shares on the day of the event causingthe shares to be held in the Charitable Trust and (2) the price per sharereceived by the Trustee (net of any commissions and other expenses of sale)from the sale or other disposition of the shares held in the Charitable Trust.The Trustee may reduce the amount payable to the Prohibited Owner by the amountof dividends and distributions paid to the Prohibited Owner and owed by theProhibited Owner to the Trustee pursuant to Section 6.3.3 of this Article VI.Any net sales proceeds in excess of the amount payable to the Prohibited Ownershall be immediately paid to the Charitable Beneficiary. If, prior to thediscovery by the Corporation that shares of Capital Stock have been transferredto the Trustee, such shares are sold by a Prohibited Owner, then (i) suchshares shall be deemed to have been sold on behalf of the Charitable Trust and (ii) tothe extent that the Prohibited Owner received an amount for such shares thatexceeds the amount that such Prohibited Owner was entitled to receive pursuantto this Section 6.3.4, such excess shall be paid to the Trustee upondemand.

 

Section 6.3.5 PurchaseRight in Stock Transferred to the Trustee. Shares of Capital Stocktransferred to the Trustee shall be deemed to have been offered for sale to the

 

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Corporation, or itsdesignee, at a price per share equal to the lesser of (i) the price pershare in the transaction that resulted in such transfer to the Charitable Trust(or, in the case of a devise or gift, the Market Price at the time of suchdevise or gift) and (ii) the Market Price on the date the Corporation, orits designee, accepts such offer. The Corporation may reduce the amount payableto the Prohibited Owner by the amount of dividends and distributions paid tothe Prohibited Owner and owed by the Prohibited Owner to the Trustee pursuantto Section 6.3.3 of this Article VI. The Corporation may pay theamount of such reduction to the Trustee for the benefit of the CharitableBeneficiary. The Corporation shall have the right to accept such offer untilthe Trustee has sold the shares held in the Charitable Trust pursuant to Section 6.3.4.Upon such a sale to the Corporation, the interest of the Charitable Beneficiaryin the shares sold shall terminate and the Trustee shall distribute the netproceeds of the sale to the Prohibited Owner and any dividends or otherdistributions held by the Trustee shall be paid to the Charitable Beneficiary.

 

Section 6.3.6 Designationof Charitable Beneficiaries. By written notice to the Trustee, theCorporation shall designate one or more nonprofit organizations to be theCharitable Beneficiary of the interest in the Charitable Trust such that (i) theshares of Capital Stock held in the Charitable Trust would not violate therestrictions set forth in Section 6.2.1(a) in the hands of suchCharitable Beneficiary and (ii) each such organization must be describedin Section 501(c)(3) of the Code and contributions to each suchorganization must be eligible for deduction under one ofSections 170(b)(1)(A), 2055 and 2522 of the Code.

 

Section 6.4 NYSETransactions. Nothing in this Article VI shall preclude the settlementof any transaction entered into through the facilities of the NYSE or any othernational securities exchange or automated inter-dealer quotation system. Thefact that the

 

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settlement of anytransaction occurs shall not negate the effect of any other provision of this Article VIand any transferee in such a transaction shall be subject to all of theprovisions and limitations set forth in this Article VI.

 

Section 6.5 DeemedERISA Representations. From and after the date upon which a registrationstatement with respect to the Common Stock becomes effective, each purchaserand subsequent transferee of Common Stock will be deemed to have represented,warranted, and agreed that its purchase and holding of Common Stock will notconstitute or result in (i) a non-exempt prohibited transaction under Section 406of ERISA or Section 4975 of the Code or (ii) a violation of anyapplicable other federal, state, local, non-U.S. or other laws or regulationsthat contain one or more provisions that are similar to the provisions of TitleI of ERISA or Section 4975 of the Code.

 

Section 6.6 Enforcement.The Corporation is authorized specifically to seek equitable relief, includinginjunctive relief, to enforce the provisions of this Article VI.

 

Section 6.7 Non-Waiver.No delay or failure on the part of the Corporation or the Board of Directors inexercising any right hereunder shall operate as a waiver of any right of theCorporation or the Board of Directors, as the case may be, except to the extentspecifically waived in writing.

 

Section 6.8 Severability.If any provision of this Article VI or any application of any suchprovision is determined to be invalid by any federal or state court havingjurisdiction over the issues, the validity of the remaining provisions shallnot be affected and other applications of such provisions shall be affectedonly to the extent necessary to comply with the determination of such court.

 

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**ARTICLEVII**

 

**AMENDMENTS**

 

The Corporation reservesthe right from time to time to make any amendment to its Charter, now orhereafter authorized by law, including any amendment altering the terms orcontract rights, as expressly set forth in the Charter, of any shares ofoutstanding stock. All rights and powers conferred by the Charter onstockholders, directors and officers are granted subject to this reservation.Except as otherwise provided in the Charter, any amendment to the Charter shallbe valid only if approved by the affirmative vote of the holders of a majorityof all the votes entitled to be cast on the matter. However, any amendment to Section 4.8,Section 5.3, Section 5.4, Article VI or to this sentence of theCharter shall be valid only if approved by the affirmative vote of the holdersof two-thirds of all the votes entitled to be cast on the matter.

 

**ARTICLEVIII**

 

**LIMITATIONOF LIABILITY**

 

To the maximum extentthat Maryland law in effect from time to time permits limitation of theliability of directors and officers of a corporation, no present or formerdirector or officer of the Corporation shall be liable to the Corporation orits stockholders for money damages. Neither the amendment nor repeal of this Article VIII,nor the adoption or amendment of any other provision of the Charter or Bylawsinconsistent with this Article VIII, shall apply to or affect in anyrespect the applicability of the preceding sentence with respect to any act orfailure to act which occurred prior to such amendment, repeal or adoption.

 

THIRD: The foregoing amendment to andrestatement of the Charter has been approved by a majority of the Board ofDirectors and approved by the stockholders of the Corporation as required bylaw.

 

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FOURTH: The current address of the principaloffice of the Corporation in the State of Maryland is as set forth in Article IIIof the foregoing amended and restated Charter.

 

FIFTH: The name and address of theCorporation’s current resident agent is as set forth in Article III of theforegoing amended and restated Charter.

 

SIXTH: The number of directors of theCorporation and the names of those currently in office are as set forth in Article IVof the foregoing amended and restated Charter.

 

SEVENTH: The total number of shares of stockwhich the Corporation had authority to issue immediately prior to thisamendment and restatement was 1,000 shares, $0.001 par value per share. The aggregatepar value of all shares of stock having par value was $1.00.

 

EIGHTH: The total number of shares of stockwhich the Corporation has authority to issue pursuant to the foregoing amendedand restated Charter is 600,000,000, consisting of 500,000,000 shares of CommonStock, $0.001 par value per share, and 100,000,000 shares of Preferred Stock,$0.001 par value per share. The aggregate par value of all shares of stockhaving par value is $600,000.00.

 

NINTH: The undersigned Chief Executive Officeracknowledges these Articles of Amendment and Restatement to be the corporateact of the Corporation and as to all matters or facts required to be verifiedunder oath, the undersigned Chief Executive Officer acknowledges that, to thebest of his knowledge, information and belief, these matters and facts are truein all material respects and that this statement is made under the penaltiesfor perjury.

 

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IN WITNESS WHEREOF, theCorporation has caused these Articles of Amendment and Restatement to be signedin its name and on its behalf by its Chief Executive Officer and attested to byits Secretary on this 22nd day of December, 2004.

 
|                   |   |                            |                    |   |
|------------------------|--------|---------------------------------|-------------------------|--------|
| ATTEST:                |   | Deerfield Triarc  Capital Corp. |                    |
|                   |   |                            |                    |   |
| /s/ Frederick L. White |   | By:                             | /s/ Jonathan W. Trutter | (SEAL) |
| Frederick L. White     |   |                            | Jonathan W. Trutter     |   |
| Secretary              |   |                            | Chief Executive Officer |   |

 

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** **

**DEERFIELDTRIARC CAPITAL CORP.**

 

**ARTICLESSUPPLEMENTARY ESTABLISHING AND FIXING THE RIGHTS ANDPREFERENCES OF A SERIES OF PREFERRED STOCK**

 

Deerfield Triarc CapitalCorp., a Maryland corporation (the “*Corporation*”),having its principal office in the State of Maryland in Baltimore City,Maryland and its principal business office in Rosemont, Illinois certifies tothe State Department of Assessments and Taxation of Maryland that:

 

*FIRST*: Under a power contained in Section 2-208of the Maryland General Corporation Law and Article V of the Corporation’sCharter, the Board of Directors (the “*Board*”),by resolutions duly adopted on December 17, 2007, classified 15,000,000shares of the unclassified preferred stock, par value $0.001 per share, of theCorporation (“*Preferred Stock*”)as Series A Cumulative Convertible Preferred Stock, with the followingpreferences, conversion or rights, voting powers, restrictions, limitations asto dividends and other distributions, qualifications and terms and conditionsof redemption. Capitalized terms used and not otherwise defined herein have themeanings set forth in the Charter.

 

(1) *Designation and Number*. A series ofPreferred Stock of the Corporation, designated the “Series A CumulativeConvertible Preferred Stock” (the “*Series APreferred Stock*”), is hereby established. The par value of the Series APreferred Stock is $0.001 per share. The number of shares of Series APreferred Stock shall be 15,000,000.

 

(2) *Rank*. The Series A Preferred Stockwill, with respect to dividend and distribution rights, redemption rights andrights upon liquidation, dissolution or winding up of the Corporation, rankprior or senior to all classes or series of common stock of the Corporation andany other class or series of capital stock of the Corporation.

 

(3) *Dividends*.

 

(a) Subject to theprovisions of subsection 8(a), Holders of Series A Preferred Stock will beentitled to receive, when and as authorized by the Board and declared by theCorporation, out of funds legally available for payment, cumulative cashdividends as follows:

 

*(i) *for the Dividend Period from the originalissuance date of the Series A Preferred Stock through the Dividend RecordDate next following the original issuance date (the “*First Dividend Record Date”*), an amount equal to 5% perannum of the Liquidation Preference;

 

*(ii)* for the Dividend Period commencingon the day after the First Dividend Record Date through the next succeedingDividend Record Date, an amount equal to the greater of (A) 5% per annumof the Liquidation Preference or (B) the Common Stock dividend declaredfor such Dividend Period;

 

*(iii)* for each succeeding Dividend Periodafter the Dividend Period referred to in clause *(ii)*, an amount equal to the greater of (A) 5% perannum of the Liquidation Preference, or (B) the Common Stock dividenddeclared for such Dividend Period.

 

(b) Dividends on theSeries A Preferred Stock, as provided for in subsection 3(a) shall becumulative from the original issuance date, whether or not the Corporation hasearnings, whether or not the Corporation has legally available funds, orwhether or not declared by the Board or authorized or paid by the Corporation.However, no cash dividend shall be payable (but nevertheless shall continue toaccrue) before the earlier to occur of a Conversion Vote or March 31,2008. Any dividend payable on the Series A Preferred Stock for any partialDividend Period will be computed on the basis of twelve 30-day months and a360-day year. Dividends will be payable in arrears to holders of record as theyappear on the records of the Corporation at the close of business on theapplicable Dividend Record Date. No interest will be paid in respect of anydividend payment or payments on the Series A Preferred Stock that may bein arrears, nor shall additional dividends be declared or paid in respect ofunpaid dividends.

 

(c) Except for thepayment of the First Dividend which in no event shall exceed $0.50 per share ofCommon Stock (as adjusted for any stock splits, stock combinations or similartransaction), unless full cumulative dividends on the Series A PreferredStock have been paid or declared and set apart for payment for all pastDividend

 

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Periods, no dividendsshall be declared or paid or set apart for payment with respect to any JuniorStock, nor shall any Junior Stock be redeemed, purchased or otherwise acquired(except for purposes of an employee benefit plan) for any consideration, or anymonies be paid to or made available for a sinking fund for the redemption ofany Junior Stock, nor shall any other cash or property be paid or distributedto or for the benefit of holders of Junior Stock. Notwithstanding theforegoing, the Corporation shall not be prohibited from redeeming, purchasingor otherwise acquiring an amount of Junior Stock or Series A PreferredStock if such redemption, purchase or other acquisition is in the opinion ofoutside counsel to the Corporation necessary to maintain the Corporation’squalification as a real estate investment trust for federal income tax purposes(“*REIT*”); provided thatprior to such redemption, purchase or acquisition of any Junior Stock, theCorporation shall first offer to each holder of Series A Preferred Stock(on a pro rata basis based on the number of shares of Series A PreferredStock owned by such holder relative to all of the outstanding shares ofPreferred Stock) the opportunity to elect to have its, his or her Series APreferred Stock redeemed at an amount equal to the Redemption Price (as definedin subsection 6(a)) computed as of the date the Redemption Price is paid.

 

(d) If, for anytaxable year, the Corporation elects to designate as “*capital gain dividends*” (as defined in Section 857of the Internal Revenue Code) any portion of the dividends (as determined forfederal income tax purposes) paid or made available for the year to holders ofall classes of capital stock, then the portion of the capital gains amount thatshall be allocable to the holders of Series A Preferred Stock shall be theamount that the total dividends (as determined for federal income tax purposes)paid or made available to the holders of the Series A Preferred Stock forthe year bears to the total dividends (as determined for federal income taxpurposes) paid or made available for the year to holders of all classes ofcapital stock.

 

(f) The liquidationpreference of the outstanding shares of Series A Preferred Stock will notbe added to the liabilities of the Corporation for the purpose of determiningwhether under the Maryland General Corporation Law a dividend or distributionmay be made to stockholders of the Corporation whose preferential rights upondissolution of the Corporation are junior to those of holders of Series APreferred Stock.

 

(4) *Liquidation Preference*.

 

(a) Upon anyvoluntary or involuntary liquidation, dissolution or winding up of theCorporation, before any payment or distribution shall be made to or set apartfor the holders of any Junior Stock, the holders of Series A PreferredStock shall be entitled to receive a liquidation preference payable in cash equalto the greater of (i) $10.00 per share (the “*Liquidation Preference*”) or (ii) the per share amountthat a holder of one share of Series A Preferred Stock would have receivedhad the share been converted into Common Stock immediately prior to the LiquidationDate, plus in each case an amount equal to all accumulated, accrued and unpaiddividends (whether or not the Corporation has earnings and whether or notauthorized by the Board or declared by the Corporation) to the LiquidationDate, and such holders shall not be entitled to any further payment. If uponany liquidation, dissolution or winding up of the Corporation, cashdistributable among the holders of Series A Preferred Stock shall beinsufficient to pay in full the above described liquidation preference, thenthe Corporation’ remaining assets, or the proceeds thereof, shall bedistributed among the holders of Series A Preferred Stock ratably in thesame proportion as the respective amounts that would be payable on such Series APreferred Stock if all amounts payable thereon were paid in full.

 

(b) Upon anyliquidation, dissolution or winding up of the Corporation, after (and onlyafter) payment shall have been made in full to the holders of Series APreferred Stock of the amount described in subsection 4(a), any other series orclass or classes of Junior Stock shall be entitled to receive any and allassets remaining to be paid or distributed, and the holders of the Series APreferred Stock shall not be entitled to share therein.

 

(c) Written noticeof any such liquidation, dissolution or winding up of the Corporation, statingthe payment date or dates when, and the place or places where, the amountsdistributable in such circumstances shall be payable, shall be given by firstclass mail, postage pre-paid, not less than 30 or more than 60 days priorto the payment date stated therein, to each record holder of Series APreferred Stock at the respective addresses of such holders as the same shallappear on the stock transfer records of the Corporation.

 

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(d) None of a Changeof Control, consolidation or merger of the Corporation with or into anotherentity, a merger of another entity with or into the Corporation, a statutorystock exchange by the Corporation or a sale, lease or conveyance of all or substantiallyall of the Corporation’s property or business shall be considered aliquidation, dissolution or winding up of the Corporation.

 

(e) The liquidationpreference of the outstanding shares of Series A Preferred Stock will notbe added to the liabilities of the Corporation for the purpose of determiningwhether under the Maryland General Corporation Law a distribution may be madeto stockholders of the Corporation whose preferential rights upon dissolutionof the Corporation are junior to those of holders of Series A PreferredStock.

 

(5) *No Optional Redemption*. Except as providedin subsection 3(c), shares of Series A Preferred Stock are not redeemableat the option of the Corporation or the holders thereof.

 

(6) *Mandatory Redemption by the Corporation*.

 

(a) *Redempt*i*on.*

 

(i) The Series APreferred Stock shall be redeemed in whole and not part by the Corporation onthe earlier to occur of (x) a Change in Control or (y) December Ï,2014 (such date, the “*Redemption Date*”)at a cash redemption price per share (the *“RedemptionPrice”)*equal to the greater of (A) the Liquidation Preferenceor (B) the Current Market Price on the Redemption Date of the Common Stockthat the holders of the Series A Preferred Stock would have received ifall shares of Preferred Stock were converted into Common Stock immediatelyprior to the Redemption Date, plus in each case, an amount equal to allaccumulated, accrued and unpaid dividends (whether or not the Corporation hasearnings, and whether or not authorized by the Board or declared by theCorporation) to the Redemption Date.

 

(ii) The Series APreferred Stock shall not be subject to any sinking fund.

 

(iii) In addition,the Series A Preferred Stock shall be subject to the provisions of Article VIof the Charter pursuant to which Series A Preferred Stock owned by astockholder in excess of the applicable Stock Ownership Limit, as establishedand modified by the Board of Directors in accordance with Section 6.2.8 ofthe Charter or any successor provision, shall automatically be transferred to aTrust for the exclusive benefit of a Charitable Beneficiary, as provided in Article VIof the Charter.

 

(b) *Procedures for Redemption*.

 

(i) Notice ofredemption of the Series A Preferred Stock shall be mailed to each holderof record of the shares to be redeemed by first class mail, postage prepaid atsuch holder’s address as the same appears on the stock records of theCorporation. Any notice which was mailed as described above shall beconclusively presumed to have been duly given on the date mailed whether or notthe holder receives the notice. In addition to any information required by lawor by the applicable rules of the exchange upon which the Series APreferred Stock may be listed or admitted to trading, each notice shall state: (i) theRedemption Date; (ii) the Redemption Price; and (iii) the place orplaces where certificates for such shares of Series A Preferred Stock areto be surrendered for cash.

 

(ii) On or after theRedemption Date, each holder of shares of Series A Preferred Stock to beredeemed shall present and surrender the certificates representing his sharesof Series A Preferred Stock to the Corporation at the place designated inthe notice of redemption and thereupon the Redemption Price of such sharesshall be paid to or on the order of the person whose name appears on suchcertificate representing shares of Series A Preferred Stock as the ownerthereof and each surrendered certificate shall be canceled.

 

(iii) If notice ofredemption has been mailed in accordance with subsection 6(b)(i) above andif the funds necessary for such redemption have been set aside by theCorporation in trust for the benefit of the holders of the Series APreferred Stock so called for redemption, then from and after the RedemptionDate (unless the Corporation defaults in the payment of the redemption price,all dividends on the shares of Series A Preferred Stock called forredemption in such notice shall cease to accumulate and all rights of theholders thereof, except the right to receive

 

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the redemption pricethereof (including all accumulated and unpaid dividends up to the RedemptionDate, whether or not the Corporation has earnings and whether or not authorizedby the Board or declared by the Corporation), shall cease and terminate and suchshares shall not thereafter be transferred (except with the consent of theCorporation) on the Corporation’s books, and such shares shall not be deemed tobe outstanding for any purpose whatsoever. At its election, the Corporation,prior to a Redemption Date, may irrevocably deposit the Redemption Price(including accumulated and unpaid dividends to the Dividend Date) of the Series APreferred Stock so called for redemption in trust for the holders thereof witha bank or trust company, in which case the Redemption Notice to holders of theshares of Series A Preferred Stock to be redeemed shall (i) state thedate of such deposit, (ii) specify the office of such bank or trustcompany as the place of payment of the redemption price and (iii) requiresuch holders to surrender the certificates representing such shares at suchplace on or about the date fixed in such redemption notice (which may not belater than the Redemption Date) against payment of the Redemption Price(including all accumulated and unpaid dividends to the Redemption Date). Anyinterest or other earnings earned on the Redemption Price (includingaccumulated and unpaid dividends) deposited with a bank or trust company shallbe paid to the Corporation. Any monies so deposited which remain unclaimed bythe holders of Series A Preferred Stock at the end of two years after theRedemption Date shall be returned by such bank or trust company to theCorporation and the holders thereof shall thereafter be entitled to look to theCorporation for payment of the Redemption Price.

 

(c) *Status of Redeemed Shares*. Any shares of Series APreferred Stock that shall at any time have been redeemed shall, after suchredemption, have the status of authorized but unclassified and unissuedPreferred Stock, until such shares are once more classified or reclassified aspart of a particular class or series by the Board.

 

(7) *Voting Rights*.

 

(a) Holders of the Series APreferred Stock shall not have any voting rights, except as provided byMaryland law and as described below.

 

(b) If and wheneverdividends on any shares of Series A Preferred Stock shall not have beenauthorized by the Board and declared and paid in cash by the Corporation onfour or more Dividend Dates, whether or not consecutive (a “*Preferred Dividend Default*”), the holdersof such shares of Series A Preferred Stock shall be entitled to vote as asingle class for the election of a total of two additional directors of theCorporation (the “*Preferred Stock Directors*”)who shall each be elected for one-year terms, subject to subsection 7(c). Suchelection shall be held at a special meeting called by an officer of theCorporation within 15 days following the occurrence of the PreferredDividend Default, unless such Preferred Dividend Default occurs less than 60 daysbefore the date fixed for the next annual or special meeting of stockholders,in which case the vote for such two directors will be held at the earlier ofthe next annual or special meeting of the stockholders, and at each subsequentannual meeting until all dividends accumulated on such shares of Series APreferred Stock for the past Dividend Periods and the dividend for the thencurrent Dividend Period shall have been fully paid or declared or authorizedand a sum sufficient for the payment thereof set aside for payment in full. Insuch cases, the size of entire Board automatically shall be increased by twodirectors. Each Preferred Stock Director shall be elected by a plurality of theoutstanding shares of Series A Preferred Stock. On any matter on which theholders of Series A Preferred Stock are entitled to vote (as expresslyprovided herein or as may be required by law), including any action by writtenconsent, each share of Series A Preferred Stock shall have one vote pershare.

 

The procedures in thissubsection 7(b) for the calling of meetings and the election of directorswill, to the extent permitted by law, supersede anything inconsistent containedin the Charter or Bylaws of the Corporation and, without limitation to theforegoing, the Bylaws of the Corporation will not be applicable to the electionof directors by holders of Series A Preferred Stock pursuant to thissubsection 7(b). Notwithstanding the Bylaws of the Corporation, the number ofdirectors constituting the entire Board will be automatically increased toinclude the directors to be elected pursuant to this subsection 7(b).

 

(c) If and when allaccumulated unpaid dividends and the dividend for the current Dividend Periodon the Series A Preferred Stock shall have been paid in full, the holdersof shares of Series A Preferred Stock shall be divested of the votingrights set forth in Section 7(b) herein (subject to revesting in theevent of each and every Preferred Dividend Default) and the term of office ofeach Preferred Stock Director so elected shall

 

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terminate and the numberof directors constituting the Board shall be reduced accordingly. So long as aPreferred Dividend Default shall continue, any vacancy in the office of aPreferred Stock Director may be filled by the vote of holders of a majority ofthe outstanding shares of Series A Preferred Stock. Any Preferred StockDirector may be removed at any time with or without cause by the vote of, andshall not be removed otherwise than by the vote of, the holders of record of a majorityof the outstanding shares of Series A Preferred Stock.

 

(d) The affirmativevote or consent of at least 66-2/3% of the votes entitled to be cast (exceptthat in the case of subsection (d)(ii) a majority of the votes entitled tobe cast) by the holders of the outstanding shares of Series A PreferredStock, voting as a single class, in addition to any other vote required by theCharter or Maryland law, will be required to: (i) authorize the creationof, or the issuance of any shares of any class of capital stock that is seniorto the Series A Preferred Stock as to dividends, redemption or upon theliquidation, dissolution or winding up of the Corporation, (ii) authorizethe creation of, or the issuance of any shares of any class of capital stockthat is on a parity with the Series A Preferred Stock as to dividends,redemption or upon the liquidation, dissolution or winding up of theCorporation, or (iii) amend, alter or repeal any provision of, or add anyprovision to, the Charter, including the articles supplementary establishingthe Series A Preferred Stock, whether by merger, consolidation or otherbusiness combination or otherwise if such other action would materiallyadversely affect the powers, rights or preferences of the holders of the Series APreferred Stock.

 

(e) The foregoingvoting provisions shall not apply if, at or prior to the time when the act withrespect to which such vote would otherwise be required shall be effected, alloutstanding shares of Series A Preferred Stock shall have been redeemed orcalled for redemption in accordance of paragraph 6 upon proper notice andsufficient funds shall have been deposited in trust to effect such redemption.

 

(8) *Mandatory Conversion of the Series A PreferredStock*.

 

(a) On theConversion Date, each share of Series A Preferred Stock shall beautomatically converted, without any action by the holders thereof or theCorporation, into that number of whole shares of Common Stock determined bydividing the Liquidation Preference by the then effective Conversion Price. Inaddition, in connection with the conversion of the Series A PreferredStock, upon a Conversion Vote the holders of Series A Preferred Stock willalso receive, on the next Dividend Payment Date occurring immediately after theConversion Date, (x) all accrued and unpaid dividends, whether or notauthorized by the Board or declared by the Corporation, plus, (y) withrespect to the Dividend Period in which the Conversion Date occurs, the amountif any by which (i) 5% per annum of the Liquidation Preference accruedfrom the start of the Dividend Period through the Conversion Date, determinedon a daily basis, exceeds (ii) the Common Stock dividend declared for suchDividend Period; provided, however, that if the Conversion Date occurs afterthe Dividend Record Date for the Dividend Period in which the Conversion Dateoccurs and prior to the Dividend Payment Date for such dividend, then inaddition to the dividend in clause (y) above and notwithstanding that theholders of Series A Preferred Stock were not holders of record on theDividend Payment Date, each holder of each share of Preferred Stock beingconverted shall also be entitled to a cash payment equal to the dividend on theCommon Stock that such holder would have received had the Conversion Dateoccurred immediately prior to such Dividend Record Date.

 

(b) Upon the receiptof a Conversion Vote, the Corporation shall give notice by mail to the holdersof the Series A Preferred Stock promptly after the Conversion Voteadvising holders of the Series A Preferred Stock them that the conversionhas automatically occurred as the result of the Conversion Vote and that theymay surrender their certificates representing the Series A Preferred Stockfor certificates representing the Common Stock. The notice to holders of Series APreferred Stock shall state, as appropriate that: (i) the Corporationobtained the Conversion Vote; (ii) accordingly, the Series APreferred Stock has automatically converted into Common Stock on the date ofthe Conversion Vote; (iii) the number of shares of Common Stock to beissued for each share of Series A Preferred Stock; and (iv) thatdividends on the Series A Preferred Stock ceased to accrue on theimmediately preceding Dividend Date.

 

(c) Upon receipt ofthe Conversion Vote, all rights of holders of the Series A Preferred Stockwill terminate except the right to receive the whole number of shares of CommonStock issuable upon conversion thereof and cash in lieu of fractional shares ofSeries A Preferred Stock and the dividends described in subsection (a).

 

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(d) If theConversion Vote is not obtained at the first special meeting of stockholdersheld for the purposes of obtaining the Conversion Vote, then the holders of atleast 20% of the outstanding Series A Preferred Stock shall have theright, exercisable once only and then only in conjunction with the annualmeeting of stockholders, to require the Corporation to include on the agendafor any subsequent annual meeting of stockholders, that the holders of theCorporation’s outstanding voting securities approve the conversion at asubsequent annual meeting by the Conversion Vote. The request by the holders ofsuch Series A Preferred Stock shall be furnished in writing to theCorporation, attention Corporate Secretary, at least 45 before the anniversaryof the prior year’s annual meeting of stockholders. If the Conversion Vote isnot obtained at the meetings described in this paragraph, then the Series APreferred Stock shall thereafter not be convertible under any circumstances.

 

(e) The ConversionPrice of the Series A Preferred Stock shall be adjusted from time to timeas follows:

 

(i) If theCorporation shall at any time or from time to time (A) make a payment ofdividends or distributions to holders of any class of Common Stock of theCorporation in Common Stock, (B) subdivide its outstanding Common Stockinto a greater number of shares, (C) combine its outstanding Common Stockinto a smaller number of shares or (D) issue any shares of Common Stock byreclassification of its Common Stock, the Conversion Price shall be adjusted sothat the holder of any shares of Series A Preferred Stock thereaftersurrendered for conversion shall be entitled to receive the number of shares ofCommon Stock that such holder would have owned or have been entitled to receiveafter the happening of any of the events described above had such shares beenconverted immediately prior to the record date in the case of a dividend ordistribution or the effective date in the case of a subdivision, combination orreclassification. An adjustment made pursuant to this subsection (e)(i) shallbecome effective immediately after the opening of business on the business daynext following the record date in the case of a distribution and shall becomeeffective immediately after the opening of business on the business day nextfollowing the effective date in the case of a subdivision, combination orreclassification. Such adjustment(s) shall be made successively wheneverany of the events listed above shall occur.

 

(ii) If theCorporation shall at any time or from time to time issue rights, options orwarrants to all holders of Common Stock entitling them to subscribe for orpurchase shares of Common Stock (or securities convertible into or exchangeablefor Common Stock) at a price per share less than the Current Market Price pershare of Common Stock on the record date for the determination of stockholdersentitled to receive such rights, options or warrants, the then existingConversion Price shall be adjusted to equal the price determined by multiplying(A) the Conversion Price in effect immediately prior to the opening ofbusiness on the business day next following the date fixed for suchdetermination by (B) a fraction, the numerator of which shall be the sum of(I) the number of shares of Common Stock outstanding on the close ofbusiness on the date fixed for such determination and (II) the number ofshares of Common Stock that could be purchased at the Current Market Price onthe date fixed for such determination with the aggregate proceeds to theCorporation from the exercise of such rights, options or warrants, and thedenominator of which shall be the sum of (x) the number of shares ofCommon Stock outstanding on the close of business on the date fixed for suchdetermination and (y) the number of additional shares of Common Stockoffered, for subscription or purchase pursuant to such rights, options orwarrants. Such adjustment shall be made successively whenever any such rights,options or warrants are issued, and shall become effective immediately afterthe opening of business on the business day next following the record date forany such rights, options, or warrants issued. In determining whether anyrights, options or warrants entitle the holders of shares of Common Stock tosubscribe for or purchase shares of Common Stock at less than the CurrentMarket Price, there shall be taken into account any consideration received bythe Corporation upon issuance and upon exercise of such rights, options orwarrants, the value of such consideration, if other than cash, to be determinedby the Board of Directors in good faith. Any adjustment(s) made pursuantto this subsection (ii) shall become effective immediately after theopening of business on the business day next following such record date. Suchadjustment(s) shall be made successively whenever any of the events listedabove shall occur.

 

(iii) If theCorporation shall distribute to all holders of its Common Stock any shares ofcapital stock of the Corporation (other than Common Stock) or evidence of itsindebtedness or assets or other property (but excluding cash dividends orrights or warrants to subscribe for or purchase any of its securities) (any ofthe foregoing being hereinafter in this subsection (iv) called the“Securities”), therein each case the then existing Conversion Price shall beadjusted so that it shall equal the price determined by multiplying (A) theConversion Price in effect immediately prior to the close of business on thedate fixed for the determination of stockholders entitled to receive such

 

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distribution by (B) afraction, the numerator of which shall be the Current Market Price per share ofCommon Stock on the record date described in the immediately followingparagraph less the then Fair Market Value of the Securities so distributedapplicable to one share of Common Stock, and the denominator of which shall bethe Current Market Price per share of Common Stock on the record date describedin the immediately following paragraph.

 

Such adjustment shallbecome effective immediately at the opening of business on the business daynext following the record date for the determination of stockholders entitledto receive such distribution. For the purposes of this subsection (iii), thedistribution of Securities which are distributed not only to the holders of theCommon Stock on the date fixed for the determination of stockholders entitledto such distribution of such Securities, but also are distributed with eachshare of Common Stock delivered to a person converting a share of Series APreferred Stock after such determination date, shall not require an adjustmentof the Conversion Price pursuant to this subsection (iii); provided that on thedate, if any, on which a person converting a share of Series A PreferredStock would no longer be entitled to receive such Securities with a share ofCommon Stock (other than as a result of the termination of all suchSecurities), a distribution of such Securities shall be deemed to haveoccurred, and the Conversion Price shall be adjusted as provided in thissubsection (iii) (and such date shall be deemed to be “the date fixed forthe determination of the stockholders entitled to receive such distribution”and “the record date” within the meaning of the two preceding sentences). Suchadjustment(s) shall be made successively whenever any of the events listedabove shall occur.

 

(iv) No adjustmentin the Conversion Price shall be required unless such adjustment would requirea cumulative increase or decrease of at least 1% in such price; provided,however, that any adjustments that by reason of this subsection (iv) arenot required to be made shall be carried forward and taken into account in anysubsequent adjustment until made; and provided, further, that any adjustmentshall be required and made in accordance with the provisions of thissubparagraph (8) (other than this subsection (iv)) not later than suchtime as may be required in order to preserve the tax-free nature of adistribution to the holders of shares of Common Stock. Notwithstanding anyother provisions of this subparagraph (8), the Corporation shall not berequired to make any adjustment to the Conversion Price (A) upon theissuance of any shares of Common Stock or options or rights to purchase sharesof Common Stock at the Current Market Price pursuant to any present or futureemployee, director or employee benefit plan or employee program of theCorporation or any of its subsidiaries that has been approved by the Board; (B) upona change in the par value of the shares of Common Stock of the Corporation; or (C) foraccumulated, declared and unpaid dividends on shares of Common Stock of theCorporation prior to the original date of issuance. All calculations under thissubparagraph (8) shall be made to the nearest cent (with $.005 beingrounded upward) or to the nearest one-tenth of a share (with .05 of a sharebeing rounded upward), as the case may be.

 

(f) If theCorporation shall be a party to any transaction (including without limitation amerger, consolidation, statutory share exchange, tender offer for all orsubstantially all of the shares of Common Stock, sale of all or substantiallyall of the Corporation’s assets or recapitalization of the Common Stock andexcluding any transaction as to which subsection (e)(i) applies (each ofthe foregoing being referred to herein as a “*Transaction*”),in each case as a result of which shares of Common Stock shall be convertedinto the right to receive shares, stock, securities or other property(including cash or any combination thereof), each share of Series APreferred Stock which is not converted into the right to receive shares, stock,securities or other property in connection with such Transaction shallthereafter be convertible into the kind and amount of shares, stock, securitiesand other property receivable (including cash or any combination thereof) uponthe consummation of such Transaction by a holder of that number of shares ofCommon Stock or fraction thereof into which one share of Series A PreferredStock was convertible immediately prior to such Transaction, assuming suchholder of Common Stock (i) is not a person with which the Corporationconsolidated or into which the Corporation merged or which merged into theCorporation or to which such sale or transfer was made, as the case may be (a “*Constituent Person*”), or an affiliate of aConstituent Person and (ii) failed to exercise his or her rights ofelection, if any, as to the kind or amount of such, stock, securities and otherproperty (including cash) receivable upon consummation of such Transaction(each a “*Non-Electing Share*”)(provided that if the kind or amount of shares, stock, securities and otherproperty (including cash) receivable upon consummation of such Transaction byeach Non-Electing Share is not the same for each Non-Electing Share, then thekind and amount of shares, stock, securities and other property (includingcash) receivable upon consummation of such Transaction for each Non-ElectingShare shall be deemed to be the kind and highest amount so receivable per shareby any Non-Electing Shares). The Corporation shall not be a party to any

 

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Transaction unless theterms of such Transaction are consistent with the provisions of this subsection(f), and it shall not consent or agree to the occurrence of any Transactionuntil the Corporation has entered into an agreement with the successor orpurchasing entity, as the case may be, for the benefit of the holders of the Series APreferred Stock, that will require such successor or purchasing entity, as thecase may be, to make provision in its certificate or articles of incorporationor other constituent documents to the end that the provisions of thissubsection (f) shall thereafter correspondingly be made applicable asnearly as may reasonably be, in relation to any shares of stock or othersecurities or property thereafter deliverable upon conversion of the Series APreferred Stock. The provisions of this subsection (f) shall similarlyapply to successive Transactions.

 

(g) If:

 

(i) the Corporationshall declare a distribution on the shares of Common Stock other than in cashout of the total equity applicable to shares of Common Stock, less the amountof stated capital attributable to the Common Stock, determined on the basis ofthe most recent annual or quarterly consolidated balance sheets of theCorporation and its consolidated subsidiaries available at the time of thedeclaration of the distribution; or

 

(ii) the Corporationshall authorize the granting to the holders of the Common Stock of rights orwarrants to subscribe for or purchase any shares of any class or any otherrights or warrants; or

 

(iii) there shall beany reclassifications of the Common Stock (other than an event to whichsubsection (e)(i) of this subparagraph (8) applied) or anyconsolidation or merger to which the Corporation is a party and for whichapproval of any stockholders of the Corporation is required, or a statutoryshare exchange involving the conversion or exchange of Common Stock intosecurities or other property, or a self tender offer by the Corporation for allor substantially all of its outstanding Common Stock, or the sale or transferof all or substantially all of the assets of the Corporation as an entity andfor which approval of any stockholder of the Corporation is required; or

 

(iv) there shalloccur the voluntary or involuntary liquidation, dissolution or winding up ofthe Corporation; then the Corporation shall cause to be filed with the transferagent for the Series A Preferred Stock and shall cause to be mailed to theholders of the Series A Preferred Stock at their addresses as shown on theshare records of the Corporation, as promptly as possible, but at least15 days prior to the applicable date hereinafter specified, a noticestating (A) the record date as of which the holders of Common Stock ofrecord to be entitled to such distribution or grant of rights or warrants areto be determined, provided, however, that no such notification need be made inrespect of a record date for a distribution or grant of rights unless thecorresponding adjustment in the Conversion Price would be an increase ordecrease of at least 1%, or (B) the date on which such reclassification,consolidation, merger, statutory share exchange, sale, transfer, liquidation,dissolution or winding up is expected to become effective, and the date as ofwhich it is expected that holders of Common Stock of record shall be entitledto exchange their Common Stock for securities or other property, if any,deliverable upon such reclassification, consolidation, merger, statutory shareexchange, sale, transfer, liquidation, dissolution or winding up. Failure togive or receive such notice or any defect therein shall not affect the legalityor validity of the proceedings described in this subparagraph (8).

 

(h) Whenever theConversion Price is adjusted as herein provided, the Corporation shall promptlyfile with the transfer agent for the Series A Preferred Stock an officer’scertificate setting forth the Conversion Price after such adjustment andsetting forth a brief statement of the facts requiring such adjustment.Promptly after delivery of such certificate, the Corporation shall prepare anotice of such adjustment of the Conversion Price, setting forth the adjustedConversion Price and the effective date on which such adjustment becomeseffective and shall mail such notice of such adjustment of the Conversion Priceto the holder of each share of Series A Preferred Stock at such holder’slast address as shown on the share records of the Corporation.

 

(i) In any case inwhich subsection (e) of this subparagraph (8) provides that anadjustment shall become effective on the date next following the record datefor an event, the Corporation may defer until the occurrence of such event (I) issuingto the holder of any shares of Series A Preferred Stock converted aftersuch record date and before the occurrence of such event the additional CommonShares issuable upon such conversion by reason of the

 

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adjustment required bysuch event over and above the shares of Common Stock issuable upon suchconversion before giving effect to such adjustment and (II) fractionalizingany shares of Series A Preferred Stock and/or paying to such holder anyamount of cash in lieu of any fraction.

 

(j) There shall beno adjustment of the Conversion Price in case of the issuance of any shares ofCommon Stock of the Corporation in a reorganization, acquisition or othersimilar transaction except as specifically set forth in this subparagraph (8).If any action or transaction would require adjustment of the Conversion Pricepursuant to more than one subsection of this subparagraph (8), only oneadjustment shall be made, and such adjustment shall be the amount of adjustmentthat has the highest absolute value.

 

(k) If theCorporation shall take any action affecting the Common Stock, other than anaction described in this subparagraph (8), that in the opinion of the Boardwould materially and adversely affect the rights of the holders of the Series APreferred Stock, the Conversion Price for the Series A Preferred Stock maybe adjusted, to the extent permitted by law, in such manner, if any, and atsuch time, as the Board, in its sole discretion, may determine to be equitablein the circumstances.

 

(l) The Corporationcovenants that it will at all times reserve and keep available, free frompreemptive rights, out of the aggregate of its authorized but unissued sharesof Common Stock, for the purpose of effecting conversion of the Series APreferred Stock, the full number of shares of Common Stock deliverable upon theconversion of all outstanding Series A Preferred Stock not theretoforeconverted in accordance with the terms set forth herein. For purposes of thissubsection (l), the number of shares of Common Stock that shall be deliverableupon the conversion of all outstanding Series A Preferred Stock shall becomputed as if at the time of computation all such outstanding shares were heldby a single holder.

 

The Corporation covenantsthat any shares of Common Stock issued upon conversion of the Series APreferred Stock shall be validly issued, fully paid and nonassessable. Beforetaking any action that would cause an adjustment reducing the Conversion Pricebelow the then par value of the Common Stock deliverable upon conversion of theSeries A Preferred Stock, the Corporation will take any action that, inthe opinion of its counsel, may be necessary in order that the Corporation mayvalidly and legally issue fully paid and nonassessable shares of Common Stockat such adjusted Conversion Price.

 

(m) The Corporationwill pay any and all documentary stamp or similar issue or transfer taxespayable in respect of the issue or delivery of shares of Common Stock or othersecurities or property on conversion of the Series A Preferred Stockpursuant hereto; provided, however, that the Corporation shall not be requiredto pay any tax that may be payable in respect of any transfer involved in theissue or delivery of shares of Common Stock or other securities or property ina name other than that of the holder of the Series A Preferred Stock to beconverted, and no such issue or delivery shall be made unless and until theperson requesting such issue or delivery has paid to the Corporation the amountof any such tax or has established, to the reasonable satisfaction of theCorporation, that such tax has been paid.

 

In addition to theforegoing adjustments, the Corporation shall be entitled to make suchreductions in the Conversion Price, in addition to those required herein, as itin its discretion considers to be advisable in order that any sharedistributions, subdivisions of shares, reclassification or combination ofshares, distribution of rights, options, warrants to purchase shares orsecurities, or a distribution of other assets (other than cash distributions)will not be taxable or, if that is not possible, to diminish any income taxesthat are otherwise payable because of such event.

 

(9) *Restrictions on Transfer, Acquisition and Redemptionof Shares*. The Series A Preferred Stock is governed by andissued subject to all of the limitations, terms and conditions of theCorporation’s Charter, including but not limited to the terms and conditions(including exceptions and exemptions) of Article VI of the Charter. Theforegoing sentence shall not be construed to limit the applicability of anyother term or provision of the Charter to the Series A Preferred Stock.Except as provided by applicable law and the Charter, there shall be norestriction on the ability of a holder of Series A Preferred Stock totransfer such shares. In addition to the legend contemplated by Article VI,Section 2.9 of the Charter, each certificate for Series A PreferredStock shall bear substantially the following legend:

 

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“The Corporation willfurnish to any stockholder on request and without charge a full statement ofthe designations and any preferences, conversion and other rights, votingpowers, restrictions, limitations as to dividends, qualifications and terms andconditions of redemption of the stock of each class which the Corporation isauthorized to issue, to the extent they have been set, and of the authority ofthe Board of Directors to set the relative rights and preferences of asubsequent series of a preferred or special class of stock. Such request may bemade to the Secretary of the Corporation or to its transfer agent.”

 

(10) *Definitions.*

 

“*Change in Control*” means the occurrence ofany of the following:

 

(i) any “person” or“group” (as those terms are used in Sections 13(d) and 14(d) of theExchange Act) is or becomes the “beneficial owner” (as that term is used in Rule 13d-3under the Exchange Act), directly or indirectly, of 50% or more of the totaloutstanding voting corporation’s power of all classes of the capital stock ofthe Corporation entitled to vote generally in the election of directors (the“voting share)”;

 

(ii) there occurs asale, transfer, lease, conveyance or other disposition of all or substantiallyall of the property or assets, or of all or substantially all of the propertyor assets of the Corporation and its subsidiaries on a consolidated basis, toany “person” or “group” (as those terms are used in Sections 13(d) and 14(d) ofthe Exchange Act), including any group acting for the purpose of acquiring,holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) underthe Exchange Act;

 

(iii) theCorporation consolidates with, or merges with or into, another person or anyperson consolidates with, or merges with or into, the Corporation, unless thepersons that “beneficially owned,” directly or indirectly, the Corporation’svoting share immediately prior to such consolidation or merger “beneficiallyowned,” directly or indirectly, immediately after such consolidation or merger,voting shares of the surviving or continuing entities representing at least amajority of the total outstanding voting stock of all outstanding classes ofvoting stock of the surviving or continuing entity;

 

(iv) the followingpersons cease for any reason to constitute a majority of the Board ofDirectors:

 

(A) individuals whoon the original issuance date constituted the Board; and

 

(B) any newdirectors whose election to the Board or whose nomination for election by theCorporation’s shareholders was approved by at least a majority of theCorporation’s directors then still in office either who were directors on theoriginal issue date or whose election or nomination for election was previouslyso approved.

 

“*Conversion Date”*means the date on whichthe Conversion Vote is obtained.

 

“*Conversion Price”*means $10.00, as suchamount may be adjusted from time to time pursuant to the terms of subparagraph8.

 

“*Conversion Vote”*means the approval of theissuance of the shares of Common Stock upon conversion of the Series APreferred Stock by the vote required under the rules of the New York StockExchange obtained at a special meeting of Stockholders held for such purpose orobtained subsequent thereto at a meeting of Stockholders requested by theholders of the Series A Preferred Stock pursuant to subsection 8(d)(ii).

 

“*Current Market Price*” of publicly tradedshares of Common Stock or any other class of capital stock or other security ofthe Corporation or any other issuer for any day shall mean the average of thelast reported sales price, regular way, on the twenty trading days ending onthe date in question, or, if no sale takes place on any day within such 20trading day period, the average of the reported closing bid and asked prices onsuch day, regular way, in either case as reported on the New York StockExchange (“NYSE”) or, if such security is not listed or admitted for trading onthe NYSE, on the principal national securities exchange on which such securityis listed or admitted for trading or, if not listed or admitted for trading onany national securities exchange, on the Nasdaq National Market or, if suchsecurity is not quoted on the Nasdaq National Market, the average of theclosing bid and asked

 

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prices on such day in theover-the-counter market as reported by Nasdaq or, if bid and asked prices forsuch security on such day shall not have been reported through Nasdaq, theaverage of the bid and asked prices on such day as furnished by any NYSE memberfirm regularly making a market in such security and selected for such purposeby the Board or, if such security is not so listed or quoted, as determined ingood faith at the sole discretion of the Board, which determination shall befinal, conclusive and binding.

 

“*Dividend Payment Date”*means the date onwhich dividends are paid with respect to the Corporation’s Common Stock toholders of record as of the applicable Dividend Record Date for such dividend.

 

“*Dividend Period”*shall mean the period forwhich a dividend is payable with respect to the Series A Preferred Stock,which shall run, initially, from the original issuance date to the FirstDividend Record Date, and thereafter shall run from the day following the priorDividend Record Date to the next succeeding Dividend Record Date.

 

“*Dividend Record Date”*shall mean eachrecord date established by the Board of Directors for a dividend with respectto the Corporation’s Common Stock; provided, that if no record date has beenestablished for payment of such a dividend on the Common Stock for any DividendPeriod ending on the last business day of December, April, July and October ineach year, the Dividend Record Date shall be the last business day of December,April, July and October, as applicable.

 

“*Fair Market Value*” shall mean the fair marketvalue as determined in good faith by the Board without regard to closingprices, if applicable.

 

“*First Dividend”*means the dividend payablewith respect to the Corporation’s Common Stock to holders of record on theFirst Dividend Record Date.

 

“*Junior Stock*” all classes or series ofcommon stock of the Corporation and any other class or series of capital stockof the Corporation, other than the Series A Preferred Stock.

 

*SECOND*: The Series A Preferred Stock hasbeen classified and designated by the Board under the authority contained inthe Charter.

 

*THIRD*: These Articles Supplementary have beenapproved by the Board in the manner and by the vote required by law.

 

*FOURTH*: These Articles Supplementary shall beeffective at the time the State Department of Assessments and Taxation ofMaryland accepts these Articles Supplementary for record.

 

*FIFTH*: The undersigned Chief Executive Officerof the Corporation acknowledges these Articles Supplementary to be the act ofthe Corporation and, as to all matters or facts required to be verified underoath, the undersigned Chief Executive Officer acknowledges that to the best ofhis knowledge, information and belief, these matters and facts are true in allmaterial respects and that this statement is made under the penalties forperjury.

 

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IN WITNESS WHEREOF, theCorporation has caused these Articles Supplementary to be executed in its nameand on its behalf by its Chief Executive Officer and attested to by itsSecretary of this 20th day of December, 2007.

 
|   | DEERFIELD TRIARC  CAPITAL CORP. |
|--------|---------------------------------|
|   |                            |
|   | By:                             | /s/ Peter H. Rothschild |
|   |                            | Name: | Peter H. Rothschild |
|   |                            | Title: | Interim Chairman of the  Board of Directors of Deerfield Triarc Capital Corp. |
|   |                            |   |   |
|   | ATTEST:                         |
|   |                            |   |   |
|   | By:                             | /s/ Frederick L. White |
|   |                            | Name: | Frederick L. White |
|   |                            | Title: | Secretary |

 

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DEERFIELD TRIARCCAPITAL CORP.

 

ARTICLES OFAMENDMENT

 

Deerfield Triarc CapitalCorp., a Maryland corporation (hereinafter called “the Corporation”), havingits principal office located at 11 East Chase Street, Baltimore, Maryland21202, hereby certifies to the State Department of Assessments and Taxation ofMaryland that:

 

FIRST: The Corporationdesires to amend its charter by striking in its entirety all of Article Secondof its Articles of Incorporation and by substituting in lieu thereof thefollowing:

 

“ARTICLE SECOND: The nameof the corporation (which is hereinafter called the “Corporation” is:

 

Deerfield CapitalCorp.

 

SECOND: The foregoingamendment to the charter of the Corporation has been approved by at least amajority of the Board of Directors at a meeting held on December 18, 2007and is limited to a change of name permitted by Section 2-605(a) ofthe Maryland General Corporation Law.

 

THIRD: The foregoingamendment to the Charter of the Corporation shall become effective at 9:00 a.m.EST on December 24, 2007.

 

IN WITNESS WHEREOF,DEERFIELD TRIARC CAPITAL CORP. has caused these Articles of Amendment to besigned and acknowledged in its name and on its behalf by its Interim Chairmanand witnessed and attested by its Secretary on this 21st day of December, 2007,and the undersigned acknowledges the same to be the act of said Corporation,and that to the best of his knowledge, information and belief, all matters andfacts stated herein are true in all material respects and that this statementis made under the penalties of perjury.

 
| ATTEST:             |   | DEERFIELD TRIARC  CAPITAL CORP. |
|---------------------|--------|---------------------------------|
|                |   |                            |   |
| /s/ Frederick White |   | By:                             | /s/ Peter Rothschild |
| Secretary           |   |                            | Interim Chairman |

 

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CERTIFICATE OFCORRECTION TO CORRECT AN ERROR IN THEARTICLES OF AMENDMENTOFDEERFIELD CAPITAL CORP.

 

Pursuant to theprovisions of Section 1-207 of the Maryland General Corporation Law, theundersigned execute(s) the following Certificate of Correction.

 

1. The title of thedocument being corrected is the Articles of Amendment filed with the Departmentof Assessments and Taxation of the State of Maryland on December 21, 2007.

 

2. The name of thesole party to the document being corrected is Deerfield Capital Corp. (the“Corporation”).

 

3. The Articles ofAmendment that were filed with the Department of Assessments and Taxation ofthe State of Maryland on December 21, 2007 require correction as permittedunder the provisions of Section 1-207 of the Maryland General CorporationLaw as a result of an error or defect in said document, namely: in the Firstrecital thereof, the Corporation inadvertently listed Article Second of itsArticles of Incorporation as the section of its organizational document beingamended.

 

4. The foregoinginaccuracy or defect in the document being corrected is hereby corrected andreplaced in its entirety to read as follows:

 

First: The Corporationdesires to amend its charter by striking in its entirety all of Article Iof its Articles of Amendment and Restatement set forth in recital Secondthereof, by substituting in lieu thereof the following;

 

**ARTICLEI**

**NAME**

 

The name of thecorporation (which is hereinafter called the “Corporation”) is:

 

Deerfield CapitalCorp.

 

IN WITNESS WHEREOF,DEERFIELD CAPITAL CORP. has caused these Articles of Amendment to be signed andacknowledged in its name and on its behalf by its Interim Chairman andwitnessed and attested by its Secretary on this 8th day of August, 2008, andthe undersigned acknowledges the same to be the act of said Corporation, andthat to the best of his knowledge, information and belief, all matters andfacts stated herein are true in all material respects and that this statementis made under the penalties of perjury.

 
| ATTEST: | DEERFIELD CAPITAL CORP. |
|---------|-------------------------|
|    |                    |   |   |
| By:     | /s/ Frederick L. White  |   | By: | /s/ Jonathan W. Trutter |
|    | Name:                   | Frederick L. White |   | Name: | Jonathan W. Trutter |
|    | Title:                  | Secretary |   | Title: | Chief Executive Officer |
|         |                         |  |  |  |  |  |

 

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DEERFIELD CAPITALCORP.ARTICLES OF AMENDMENTEFFECTING 1 for 10 REVERSE STOCK SPLIT

 

DEERFIELD CAPITAL CORP.,a Maryland corporation having its principal office in Baltimore City**,** Maryland (the “Corporation”), herebycertifies to the Maryland State Department of Assessments and Taxation that:

 

FIRST: The Charter of theCorporation is hereby amended by changing and reclassifying each of the sharesof Common Stock (par value $.001 per share) of the Corporation, which is issuedand outstanding at the close of business on the effective date of thisamendment, into one-tenth of a share of Common Stock (par value $.001 pershare) and by transferring from the “Common Stock” account to the “AdditionalPaid-in Capital Account” $.001 with respect to each share which will no longerremain outstanding after this change and reclassification, such change andreclassification to be made as a 1-for-10 reverse stock split.

 

SECOND: The directors ofthe Corporation at a meeting duly noticed and held, adopted and approved theforegoing amendment by the vote required under Maryland law and the charter andbylaws of the Corporation. Pursuant to Section 2-309(e) of theCorporations and Associations Article of the Annotated Code of Maryland,stockholder approval of this charter amendment is not required.

 

THIRD: The Corporationhas a class of equity securities registered under the Securities Exchange Actof 1934.

 

FOURTH: The undersignedChief Executive Officer acknowledges these Articles of Amendment to be thecorporate act of the Corporation and, as to all matters or facts required to beverified under oath, the undersigned Chief Executive Officer acknowledges thatto the best of his knowledge, information and belief, these matters and factsare true in all material respects and this statement is made under thepenalties of perjury.

 

FIFTH: These Articlesshall become effective at 11:59 p.m. on October 16, 2008.

 

IN WITNESS WHEREOF,Deerfield Capital Corp. has caused these presents to be signed in its name andon its behalf by its Chief Executive Officer this 16th day of October, 2008.

 
| ATTEST:                |   |   | DEERFIELD CAPITAL CORP. |
|------------------------|--------|--------|-------------------------|
|                   |   |   |                    |   |
| /s/ Frederick L. White |   | By     | /s/ Jonathan W. Trutter |
| Secretary              |   |   |                    | Jonathan W. Trutter  Chief Executive Officer |

 

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**DEERFIELDCAPITAL CORP.**

 

**ARTICLESSUPPLEMENTARY**

 

Deerfield Capital Corp.,a Maryland corporation (the “Corporation”), hereby certifies to the StateDepartment of Assessments and Taxation of Maryland that:

 

FIRST: Under a power contained in Article V,Section 5.3 of the charter of the Corporation (the “Charter”), the Boardof Directors of the Corporation (the “Board of Directors”), by resolution dulyclassified 100,000 shares (the “Shares”) of Preferred Stock (as defined in theCharter) as shares of Series A Junior Participating Preferred Stock, $.001par value per share (the “Series A Junior Participating Preferred Stock”),with the preferences, conversion and other rights, voting powers, restrictions,limitations as to dividends and other distributions, qualifications and termsand conditions of redemption, as set forth as follows.

 

**SERIESA JUNIOR PARTICIPATING PREFERRED STOCK**

 

Section 1. Designationand Amount. The shares of such series shall be classified as “Series AJunior Participating Preferred Stock” and the number of shares constitutingsuch series shall be 100,000.

 

Section 2. Dividendsand Distributions.

 

(a) Subject to theprior and superior rights of the holders of any shares of any series ofPreferred Stock ranking prior and superior to the shares of Series AJunior Participating Preferred Stock with respect to dividends, the holders ofshares of Series A Junior Participating Preferred Stock shall be entitledto receive, when, as and if authorized by the Board of Directors and declaredby the Corporation out of funds legally available for the purpose, quarterlydividends payable in cash on or before the 30th day of January, April, July and October ineach year (each such date being referred to herein as a “Quarterly DividendPayment Date”), commencing on the first Quarterly Dividend Payment Date afterthe first issuance of a share or fraction of a share of Series A JuniorParticipating Preferred Stock, in an amount per share (rounded to the nearestcent) equal to the greater of (a) $.001 or (b) subject to theprovision for adjustment hereinafter set forth, 1,000 times the aggregate pershare amount of all cash dividends, and 1,000 times the aggregate per shareamount (payable in kind) of all non-cash dividends or other distributions otherthan a dividend payable in shares of Common Stock or a subdivision of theoutstanding shares of Common Stock (by reclassification or otherwise), declaredon the Common Stock, par value $.001 per share, of the Corporation (the “CommonStock”) since the immediately preceding Quarterly Dividend Payment Date, or,with respect to the first Quarterly Dividend Payment Date, since the firstissuance of any share or fraction of a share of Series A JuniorParticipating Preferred Stock. In the event the Corporation shall at any timeafter March 11, 2009 (the “Rights Declaration Date”) (i) declare anydividend on Common Stock payable in shares of Common Stock, (ii) subdividethe outstanding Common Stock, or (iii) combine the outstanding CommonStock into a smaller number of shares, then in each such case the amount towhich

 

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holders of shares of Series AJunior Participating Preferred Stock were entitled immediately prior to suchevent under clause (b) of the preceding sentence shall be adjusted bymultiplying such amount by a fraction the numerator of which is the number ofshares of Common Stock outstanding immediately after such event and thedenominator of which is the number of shares of Common Stock that wereoutstanding immediately prior to such event.

 

(b) The Corporationmay not declare or pay a dividend on the Common Stock (other than a dividendpayable in shares of the Common Stock) unless it simultaneously declares andpays a dividend on the Series A Junior Participating Preferred Stock asprovided in paragraph (a) above; provided that, in the event no dividendpayable in shares shall have been declared on the Common Stock during theperiod between any Quarterly Dividend Payment Date and the next subsequentQuarterly Dividend Payment Date, subject to the prior and superior rights ofthe holders of any shares of any series of Preferred Stock ranking prior andsuperior to the shares of Series A Junior Participating Preferred Stockwith respect to dividends, a dividend of $.001 per share on the Series AJunior Participating Preferred Stock shall nevertheless be payable on suchsubsequent Quarterly Dividend Payment Date.

 

(c) Subject to theprior and superior rights of the holders of any shares of any series ofPreferred Stock ranking prior and superior to the shares of Series AJunior Participating Stock with respect to dividends, dividends shall begin toaccrue and be cumulative on outstanding shares of Series A JuniorParticipating Preferred Stock from the Quarterly Dividend Payment Date nextpreceding the date of issue of such shares of Series A JuniorParticipating Preferred Stock, unless the date of issue of such shares is priorto the record date for the first Quarterly Dividend Payment Date, in which casedividends on such shares shall begin to accrue from the date of issue of suchshares, or unless the date of issue is a Quarterly Dividend Payment Date or isa date after the record date for the determination of holders of shares of Series AJunior Participating Preferred Stock entitled to receive a quarterly dividendand before such Quarterly Dividend Payment Date, in either of which events suchdividends shall begin to accrue and be cumulative from such Quarterly DividendPayment Date. Accrued but unpaid dividends shall not bear interest. Dividendspaid on the shares of Series A Junior Participating Preferred Stock in anamount less than the total amount of such dividends at the time accrued andpayable on such shares shall be allocated pro rata on a share-by-share basisamong all such shares at the time outstanding. The Board of Directors may fix arecord date for the determination of holders of shares of Series A JuniorParticipating Preferred Stock entitled to receive payment of a dividend ordistribution declared thereon, which record date shall be no more than30 days prior to the date fixed for the payment thereof.

 

Section 3. VotingRights. The holders of shares of Series A Junior ParticipatingPreferred Stock shall have the following voting rights:

 

(a) Subject to theprovision for adjustment hereinafter set forth, each share of Series AJunior Participating Preferred Stock shall entitle the holder thereof to 1,000votes on all matters submitted to a vote of the holders of Common Stock. In theevent the Corporation shall at any time after the Rights Declaration Date (i) declareany

 

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dividend on Common Stockpayable in shares of Common Stock, (ii) subdivide the outstanding CommonStock, or (iii) combine the outstanding Common Stock into a smaller numberof shares, then in each such case the number of votes per share to whichholders of shares of Series A Junior Participating Preferred Stock wereentitled immediately prior to such event shall be adjusted by multiplying suchnumber by a fraction the numerator of which is the number of shares of CommonStock outstanding immediately after such event and the denominator of which isthe number of shares of Common Stock that were outstanding immediately prior tosuch event.

 

(b) Except asotherwise provided herein or by law, the holders of shares of Series AJunior Participating Preferred Stock and the holders of shares of Common Stockshall vote together as one class on all matters submitted to a vote ofstockholders of the Corporation.

 

(c) (i) If atany time dividends on any Series A Junior Participating Preferred Stockshall be in arrears in an amount equal to six quarterly dividends thereon, theoccurrence of such contingency shall mark the beginning of a period (hereincalled a “default period”) which shall extend until such time when all accruedand unpaid dividends for all previous quarterly dividend periods and for thecurrent quarterly dividend period on all shares of Series A Junior ParticipatingPreferred Stock then outstanding shall have been declared and paid or set apartfor payment. During each default period, all holders of Preferred Stock(including holders of the Series A Junior Participating Preferred Stock)with dividends in arrears in an amount equal to six quarterly dividendsthereon, voting as a class, irrespective of series, shall have the right toelect two directors.

 

(ii) During anydefault period, such voting right of the holders of Series A JuniorParticipating Preferred Stock may be exercised initially at a special meetingcalled pursuant to subparagraph (iii) of this Section 3(c) or atany annual meeting of stockholders, and thereafter at annual meetings ofstockholders, provided that neither such voting right nor the right of theholders of any other series of Preferred Stock, if any, to increase in certaincases the authorized number of directors shall be exercised unless the holdersof at least ten percent in number of shares of Series A JuniorParticipating Preferred Stock outstanding shall be present in person or byproxy. The absence of a quorum of the holders of Common Stock shall not affectthe exercise by the holders of Series A Junior Participating PreferredStock of such voting right. At any meeting at which the holders of Series AJunior Participating Preferred Stock shall exercise such voting right initiallyduring an existing default period, they shall have the right, voting as aclass, to elect directors to fill such vacancies, if any, in the Board ofDirectors as may then exist up to two directors or, if such right is exercisedat an annual meeting, to elect two directors. If the number which may be soelected at any special meeting does not amount to the required number, theholders of the Series A Junior Participating Preferred Stock shall havethe right to make such increase in the number of directors as shall benecessary to permit the election by them of the required number. After theholders of the Series A Junior Participating Preferred Stock shall haveexercised their right to elect directors in any default period and during thecontinuance of such period, the number of directors shall not be increased ordecreased except by vote of the holders of Series A

 

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Junior ParticipatingPreferred Stock as herein provided or pursuant to the rights of any equitysecurities ranking senior to or *pari passu*withthe Series A Junior Participating Preferred Stock.

 

(iii) Unless theholders of Series A Junior Participating Preferred Stock shall, during anexisting default period, have previously exercised their right to electdirectors, the Board of Directors may authorize, or any stockholder orstockholders owning in the aggregate not less than ten percent of the total numberof shares of Series A Junior Participating Preferred Stock outstanding,may request, the calling of a special meeting of the holders of Series AJunior Participating Preferred Stock, which meeting shall thereupon be calledby the Chief Executive Officer, President, a Vice President or the Secretary ofthe Corporation. Notice of such meeting and of any annual meeting at whichholders of Series A Junior Participating Preferred Stock are entitled tovote pursuant to this paragraph (c)(iii) shall be given to each holder ofrecord of Series A Junior Participating Preferred Stock by mailing a copyof such notice to such holder at its last address as the same appears on thebooks of the Corporation. Such meeting shall be called for a time not earlierthan 20 days and not later than 60 days after such order or requestor in default of the calling of such meeting within 60 days after suchorder or request, such meeting may be called on similar notice by anystockholder or stockholders owning in the aggregate not less than ten percentof the total number of shares of Series A Junior Participating PreferredStock outstanding. Notwithstanding the provisions of this paragraph (c)(iii),no such special meeting shall be called during the period within 60 daysimmediately preceding the date fixed for the next annual meeting of thestockholders.

 

(iv) In any defaultperiod, the holders of Common Stock, and other classes of stock of theCorporation if applicable (including the Series A Junior ParticipatingPreferred Stock), shall continue to be entitled to elect the whole number ofdirectors until the holders of Series A Junior Participating PreferredStock shall have exercised their right to elect two directors voting as aclass, after the exercise of which right (x) the directors so elected bythe holders of Series A Junior Participating Preferred Stock shallcontinue in office until their successors shall have been elected by suchholders or until the expiration of the default period, and (y) any vacancyin the Board of Directors may (except as provided in paragraph (c)(ii) ofthis Section 3) be filled by vote of a majority of the remaining directorstheretofore elected by the holders of the class of stock which elected thedirector whose office shall have become vacant. References in this paragraph (c) todirectors elected by the holders of a particular class of stock shall includedirectors elected by such directors to fill vacancies as provided in clause (y) ofthe foregoing sentence.

 

(v) Immediately uponthe expiration of a default period, (x) the right of the holders of Series AJunior Participating Preferred Stock as a class to elect directors shall cease,(y) the term of any directors elected by the holders of Series AJunior Participating Preferred Stock as a class shall terminate, and (z) thenumber of directors shall be such number as may be provided for in the Charteror Bylaws irrespective of any increase made pursuant to the provisions ofparagraph (c)(ii) of this Section 3 (such number being subject,however, to change thereafter in any manner

 

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provided by law or in theCharter or Bylaws). Any vacancies in the Board of Directors effected by theprovisions of clauses (y) and (z) in the preceding sentence may befilled by a majority of the remaining directors.

 

(d) Except as setforth herein, holders of Series A Junior Participating Preferred Stockshall have no special voting rights and their consent shall not be required(except to the extent they are entitled to vote with holders of Common Stock asset forth herein) for taking any corporate action.

 

Section 4. CertainRestrictions.

 

(a) Wheneverquarterly dividends payable on the Series A Junior Participating PreferredStock as provided in Section 2 are in arrears, thereafter and until allaccrued and unpaid dividends, whether or not declared, on shares of Series AJunior Participating Preferred Stock outstanding shall have been paid in full,the Corporation shall not:

 

(i) declare or paydividends on, make any other distributions on, or redeem or purchase orotherwise acquire for consideration any shares of stock ranking junior (eitheras to dividends or upon liquidation, dissolution or winding up) to the Series AJunior Participating Preferred Stock;

 

(ii) declare or paydividends on or make any other distributions on any shares of stock ranking ona parity (either as to dividends or upon liquidation, dissolution or windingup) with the Series A Junior Participating Preferred Stock, exceptdividends paid ratably on the Series A Junior Participating PreferredStock and all such parity stock on which dividends are payable or in arrears inproportion to the total amounts to which the holders of all such shares arethen entitled;

 

(iii) redeem orpurchase or otherwise acquire for consideration shares of any stock ranking ona parity (either as to dividends or upon liquidation, dissolution or windingup) with the Series A Junior Participating Preferred Stock, provided thatthe Corporation may at any time redeem, purchase or otherwise acquire shares ofany such parity stock in exchange for shares of any stock of the Corporationranking junior (either as to dividends or upon dissolution, liquidation orwinding up) to the Series A Junior Participating Preferred Stock; or

 

(iv) purchase orotherwise acquire for consideration any shares of Series A Junior ParticipatingPreferred Stock, or any shares of stock ranking on a parity with the Series AJunior Participating Preferred Stock, except in accordance with a purchaseoffer made in writing or by publication (as determined by the Board ofDirectors) to all holders of such shares upon such terms as the Board ofDirectors, after consideration of the respective annual dividend rates andother relative rights and preferences of the respective series and classes,shall determine in good faith will result in fair and equitable treatment amongthe respective series or classes.

 

(b) The Corporationshall not permit any subsidiary of the Corporation to purchase or otherwiseacquire for consideration any shares of stock of the Corporation

 

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unless the Corporationcould, under paragraph (a) of this Section 4, purchase or otherwiseacquire such shares at such time and in such manner.

 

Section 5. ReacquiredShares. Any shares of Series A Junior Participating Preferred Stock purchasedor otherwise acquired by the Corporation in any manner whatsoever shall becomeauthorized but unissued shares of Preferred Stock with classification ordesignation and may be reissued as part of a new series of Preferred Stock tobe created by resolution or resolutions of the Board of Directors, subject tothe conditions and restrictions on issuance set forth herein.

 

Section 6. Liquidation,Dissolution or Winding Up.

 

(a) Upon anyliquidation (voluntary or otherwise), dissolution or winding up of theCorporation, no distribution shall be made to the holders of shares of stockranking junior (either as to dividends or upon liquidation, dissolution orwinding up) to the Series A Junior Participating Preferred Stock unless,prior thereto, the holders of shares of Series A Junior ParticipatingPreferred Stock shall have received an amount equal to $1,000.00 per share of Series AJunior Participating Preferred Stock, plus an amount equal to accrued andunpaid dividends and distributions thereon, whether or not declared, to thedate of such payment (the “Series A Liquidation Preference”). Followingthe payment of the full amount of the Series A Liquidation Preference, noadditional distributions shall be made to the holders of shares of Series AJunior Participating Preferred Stock unless, prior thereto, the holders ofshares of Common Stock shall have received an amount per share (the “CommonAdjustment”) equal to the quotient obtained by dividing (i) the Series ALiquidation Preference by (ii) 1,000 (as appropriately adjusted as setforth in subparagraph (c) below to reflect such events as stock splits,stock dividends and recapitalizations with respect to the Common Stock) (suchnumber in clause (ii), the “Adjustment Number”). Following the payment of thefull amount of the Series A Liquidation Preference and the CommonAdjustment in respect of all outstanding shares of Series A JuniorParticipating Preferred Stock and Common Stock, respectively, holders of Series AJunior Participating Preferred Stock and holders of shares of Common Stockshall receive their ratable and proportionate share of the remaining assets tobe distributed in the ratio of the Adjustment Number to 1 with respect to suchPreferred Stock and Common Stock, on a per share basis, respectively.

 

(b) In the event,however, that there are not sufficient assets available to permit payment infull of the Series A Liquidation Preference and the liquidationpreferences of all other series of preferred stock, if any, which rank on aparity with the Series A Junior Participating Preferred Stock, then suchremaining assets shall be distributed ratably to the holders of such parityshares in proportion to their respective liquidation preferences. In the event,however, that there are not sufficient assets available to permit payment infull of the Common Adjustment, then such remaining assets shall be distributedratably to the holders of Common Stock.

 

(c) In the event theCorporation shall at any time after the Rights Declaration Date (i) declareany dividend on Common Stock payable in shares of Common Stock, (ii) subdividethe outstanding Common Stock, or (iii) combine the

 

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outstanding Common Stockinto a smaller number of shares, then in each such case the Adjustment Numberin effect immediately prior to such event shall be adjusted by multiplying suchAdjustment Number by a fraction the numerator of which is the number of sharesof Common Stock outstanding immediately after such event and the denominator ofwhich is the number of shares of Common Stock that were outstanding immediatelyprior to such event.

 

(d) In determiningwhether a distribution (other than upon voluntary or involuntary liquidation)by dividend, redemption or other acquisition of shares of stock of theCorporation or otherwise is permitted under the Maryland General CorporationLaw, no effect shall be given to amounts that would be needed, if theCorporation were to be dissolved at the time of the distribution, to satisfythe preferential rights upon dissolution of holders of shares of stock of theCompany whose preferential rights upon dissolution are superior to thosereceiving the distribution.

 

Section 7. Consolidation,Merger, etc. In case the Corporation shall enter into any consolidation,merger, combination or other transaction in which the shares of Common Stockare exchanged for or changed into other stock or securities, cash and/or anyother property, then, as a condition to the transaction, the shares of Series AJunior Participating Preferred Stock shall at the same time be similarlyexchanged or changed in an amount per share (subject to the provision foradjustment hereinafter set forth) equal to 1,000 times the aggregate amount ofstock, securities, cash and/or any other property (payable in kind), as thecase may be, into which or for which each share of Common Stock is changed orexchanged. In the event the Corporation shall at any time after the RightsDeclaration Date (i) declare any dividend on Common Stock payable inshares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combinethe outstanding Common Stock into a smaller number of shares, then in each suchcase the amount set forth in the preceding sentence with respect to theexchange or change of shares of Series A Junior Participating PreferredStock shall be adjusted by multiplying such amount by a fraction the numeratorof which is the number of shares of Common Stock outstanding immediately aftersuch event and the denominator of which is the number of shares of Common Stockthat were outstanding immediately prior to such event.

 

Section 8. NoRedemption. The shares of Series A Junior Participating PreferredStock shall not be redeemable.

 

Section 9. Ranking.The Series A Junior Participating Preferred Stock shall rank junior to allother series of Preferred Stock as to the payment of dividends and thedistribution of assets, unless the terms of any such series shall provideotherwise.

 

Section 10. Amendment.At any time when any shares of Series A Junior Participating PreferredStock are outstanding, the Charter, including the terms of these ArticlesSupplementary, shall not be amended, by merger or otherwise, in any mannerwhich would materially alter or change the powers, preferences or specialrights of the Series A Junior Participating Preferred Stock so as toaffect them adversely without the

 

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affirmative vote of theholders of a majority of the outstanding shares of Series A JuniorParticipating Preferred Stock, voting separately as a class.

 

Section 11. FractionalShares. Series A Junior Participating Preferred Stock may be issued infractions of a share which shall entitle the holder, in proportion to suchholder’s fractional shares, to exercise voting rights, receive dividends,participate in distributions and to have the benefit of all other rights ofholders of Series A Junior Participating Preferred Stock.

 

SECOND: The Shares have been classified by theBoard of Directors under the authority contained in the Charter.

 

THIRD: These Articles Supplementary have beenapproved by the Board of Directors in the manner and by the vote required bylaw.

 

FOURTH: The undersigned duly authorized officerof the Corporation acknowledges these Articles Supplementary to be thecorporate act of the Corporation and, as to all matters or facts required to beverified under oath, the undersigned duly authorized officer acknowledges thatto the best of his or her knowledge, information and belief, these matters andfacts are true in all material respects and that this statement is made underthe penalties for perjury.

 

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IN WITNESS WHEREOF, theCorporation has caused these Articles Supplementary to be signed in its nameand on its behalf by the undersigned duly authorized officer and attested to byits Corporate Secretary on March 11, 2009.

 
| ATTEST:                 |                |   | DEERFIELD CAPITAL CORP. |
|-------------------------|---------------------|--------|-------------------------|
|                    |                |   |                    |   |   |
| /s/ Robert A. Contreras |                | By:    | /s/ Jonathan W. Trutter |
| (SEAL)                  |                |   |                    | Name: | Jonathan W. Trutter |
| Name:                   | Robert A. Contreras |   |                    | Title: | Chief Executive Officer |
| Title:                  | Secretary           |   |                    |   |   |
|                         |                     |        |                         |  |  |  |  |

 

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**DEERFIELDCAPITAL CORP.**

**ARTICLESOF AMENDMENT**

 

Deerfield Capital Corp., a Maryland corporation (the “Corporation”),having its principal office located at 11 East Chase Street, Baltimore,Maryland 21202, hereby certifies to the State Department of Assessments andTaxation of Maryland that:

 

FIRST: The charter ofthe Corporation (the “Charter”) is hereby amended by deleting therefrom Article IIand inserting in lieu thereof the following Article II:

 

“**ARTICLE II**

**PURPOSE**

 

The purpose for which the Corporation is formed is toengage in any lawful act or activity for which corporations may be organizedunder the general laws of the State of Maryland as now or hereafter in force.”

 

SECOND: The Charter of the Corporationis hereby amended by inserting the following Article IX in full after Article VIIIof the Charter:

 

“**ARTICLE IX**

**SECTION 382 OWNERSHIP LIMIT**

 

Section 9.1 Purpose.In order to preserve the Tax Benefits to which the Corporation or any direct orindirect subsidiary thereof is entitled pursuant to the Internal Revenue Codeof 1986, as amended, or any successor statute (the “Code”), and the TreasuryRegulations promulgated thereunder, the Corporation Securities shall be subject

 

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to the followingrestrictions.

 

Section 9.2 CertainDefinitions. For purposes of this Article IX, the following termsshall have the meanings indicated (and any references to any portions ofTreasury Regulation § 1.382-2T shall include any successor provisions):

 

(a)  “5% Transaction”means any Transfer or purported Transfer of Corporation Securities described inSection 9.3hereof, which Transfer is prohibited and/or void under the provisions of such Section 9.3hereof.

 

(b)  “Agent” meansany agent designated by the Board of Directors of the Corporation pursuant to Section 9.6(b) hereof.

 

(c)  “Code” has themeaning set forth in Section 9.1 hereof.

 

(d)  “CorporationSecurities” means (i) shares of Common Stock, (ii) shares ofPreferred Stock (other than preferred stock described in Section 1504(a)(4) ofthe Code), (iii) warrants, rights, or options (including options withinthe meaning of Treasury Regulation § 1.382-4(d)(9)) to purchase stock (otherthan preferred stock described in Section 1504(a)(4) of the Code) ofthe Corporation, and (iv) any other interest that would be treated as “stock”of the Corporation pursuant to Treasury Regulation § 1.382-2T(f)(18).

 

(e)  “ExcessSecurities” has the meaning set forth in Section 9.6(a) hereof.

 

(f)  “Five-PercentShareholder” means a Person or group of Persons that is a “5-percent shareholder”of the Corporation pursuant to Treasury Regulation § 1.382-2T(g).

 

(g)  “NYSE AMEX”means the NYSE AMEX Equities.

 

(h)  “PercentageStock Ownership” means the percentage stock ownership interest as determined inaccordance with Treasury Regulation § 1.382-2T(g), (h), (j) and (k).

 

(i)  “PermittedTransfer” means a Transfer of Corporation Securities (i) after theRestriction Release Date, (ii) pursuant to any merger, consolidation,statutory share exchange, tender offer or similar transaction approved inadvance by the Board of Directors in its sole and absolute discretion, (iii) as a result ofthe issuance of a warrant, the exercise thereof, the transfer or acquisition ofsuch warrant or Corporation Securities acquired thereby, where such warrant hadfirst been issued upon approval of our Board unless and until the Person towhom such warrant was issued thereafter acquires any Corporation Securitiesthat are unrelated to the warrant, or (iv) pursuant to any issuance or sale ofCorporation Securities by the Corporation or any of its subsidiaries.

 

(j)  “Person” shallmean any individual, firm, corporation, partnership, trust association, limitedliability company, limited liability partnership, or other entity, or any groupof Persons making a “coordinated acquisition” of shares or otherwise treated asan entity within the meaning of Treasury Regulation § 1.382-3(a)(1), orotherwise and shall include any successor (by merger or otherwise) of any suchentity.

 

(k)  “ProhibitedDistribution” has the meaning set forth in Section 9.6(b) hereof.

 

(l)  “PurportedTransferee” has the meaning set forth in Section 9.6(a) hereof.

 

(m)  “ProhibitedTransfer” means any 5% Transaction (other than a Permitted Transfer).

 

(n)  “RestrictionRelease Date” means the date as the Board of Directors may determine, in itssole and absolute discretion, that this Article IX is no longer in thebest interests of the Corporation and its shareholders.

 

(o)  “Section 501(c)(3)”has the meaning set forth in Section 9.6(c) hereof.

 

(p)  “Section 382”means Section 382 of the Code, or any comparable successor provision.

 

(q)  “Tax Benefit”means the net operating loss carryovers, capital loss carryovers, generalbusiness credit carryovers, alternative minimum tax credit carryovers andforeign tax credit carryovers, as well as any loss or deduction attributable toa “net unrealized built-in loss” within the meaning of Section 382, of theCorporation or any direct or indirect subsidiary thereof.

 

(r)  “Transfer”means any direct or indirect sale, transfer, assignment, exchange, issuance,grant, redemption, repurchase, conveyance, pledge or other disposition, whethervoluntary or involuntary, and whether by operation of law or otherwise, by anyPerson other than the Corporation. A Transfer also shall include the creationor grant of an option, warrant or right (including an option within the meaningof Treasury Regulation § 1.382-4(d)(9)) by any Person other than theCorporation, but only if such option, warrant or right would be deemed exercisedpursuant to Treasury Regulation § 1.382-4(d)(2)(i).

 

Section 9.3 TransferRestrictions.  Any attempted Transferof Corporation Securities prior to the Restriction Release Date, or anyattempted Transfer of Corporation Securities pursuant to an agreement enteredinto prior to the Restriction Release Date, that

 

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is not a PermittedTransfer shall be prohibited and void *ab initio*insofar as it purports to transfer ownership or rights in respect of suchCorporation Securities to the Purported Transferee to the extent that, as aresult of such Transfer (or any series of Transfers of which such Transfer is apart), either (a) any Person or group of Persons shall become a Five-PercentShareholder (including, without limitation, as a result of a disposition ofCorporation Securities pursuant to Treasury Regulation§ 1.382-2T(j)(3)(i)) or (b) the Percentage Stock Ownership interestin the Corporation of any Five-Percent Shareholder shall be increased.

 

Section 9.4 Waiver.  The restrictions set forth in Section 9.3hereof shall not apply to an attempted Transfer that is a 5% Transaction if thetransferor or the transferee obtains the approval of the Board of Directors inits sole and absolute discretion. In considering whether to approve any suchtransfer, the Board of Directors may take into account any factors it deemsappropriate, including, but not limited to, both the proposed Transfer andpotential future Transfers, and may require an opinion of counsel (at theexpense of the transferor and/or transferee) that the transfer will not resultin any limitation on the Corporation or any direct or indirect subsidiary’s useof the Tax Benefits. The Board of Directors may exercise the authority grantedby this Section 9.4 hereof through dulyauthorized officers or agents of the Corporation.

 

Section 9.5 CertificateLegend. Each certificate representing shares of Corporation Securitiesissued prior to the Restriction Release Date shall contain the legend set forthbelow, evidencing the restrictions set forth in this Article IX:

 

“The transfer ofsecurities represented by this certificate is (and other securities of theCorporation may be) subject to restriction pursuant to Article IX of theCorporation’s Charter. The Corporation will furnish a copy of its Charter (or asummary thereof) setting forth the powers, designations, preferences andrelative, participating, optional or other special rights of each class ofstock or series thereof and the qualifications, limitations or restrictions ofsuch preferences and/or rights to the holder of record of this Certificatewithout charge upon written request addressed to the Corporation at itsprincipal place of business.”

 

With respect to any shares of Corporation Securitiesthat are not evidenced by a certificate, but are uncertificated securities, theforegoing legend shall be set forth in the initial statement of holdings.

 

Section 9.6 Treatmentof Excess Securities.

 

(a)  No employee oragent of the Corporation shall record any Prohibited Transfer, and thepurported transferee of such a Prohibited Transfer (the “Purported Transferee”)shall not be recognized as a stockholder of the Corporation for any purposewhatsoever in respect of the Corporation Securities that are the subject of theProhibited Transfer (the “Excess Securities”). Until the Excess Securities areacquired by another Person in a Transfer that is not a Prohibited Transfer,such Purported Transferee shall not be entitled with respect to such ExcessSecurities to any rights of stockholders of the Corporation, including, withoutlimitation, the right to vote such Excess Securities or to receive dividends ordistributions, whether liquidating or otherwise, in respect thereof, if any;provided, however, that the Transferor of such Excess Securities shall not berequired to disgorge, and shall be permitted to retain for its own account, anyproceeds of such Transfer, and shall have no further rights, responsibilities,obligations or liabilities with respect to such Excess Securities, if suchTransfer was a Prohibited Transfer. Once the Excess Securities have beenacquired in a Transfer that is not a Prohibited Transfer, the CorporationSecurities shall cease to be Excess Securities. For this purpose, any transferof Excess Securities not in accordance with the provisions of this Section 9.6shall also be a Prohibited Transfer.

 

(b)  If theCorporation determines, in its sole and absolute discretion, that a Transfer ofCorporation Securities constitutes a Prohibited Transfer then, upon writtendemand by the Corporation, the Purported Transferee shall transfer or cause tobe transferred any certificate or other evidence of ownership of the ExcessSecurities within the Purported Transferee’s possession or control, togetherwith any dividends or other distributions that were received by the PurportedTransferee from the Corporation with respect to the Excess Securities (“ProhibitedDistributions”), to the Agent designated by the Board of Directors. The Agentshall thereupon sell to a buyer or buyers, which may include the Corporation,the Excess Securities transferred to it in one or more arm’s length transactions(over the NYSE AMEX or other national securities exchange, if possible, orotherwise over-the-counter or privately); provided, however, that the Agentshall effect such sale or sales in an orderly fashion and shall not be requiredto effect any such sale within any specific timeframe if, in the Agent’sdiscretion, such sale or sales would disrupt the market for the CorporationSecurities or otherwise would adversely affect the value of the CorporationSecurities. If the Purported Transferee has resold the Excess Securities beforereceiving the Corporation’s demand to surrender Excess Securities to the Agent,the Purported Transferee shall be deemed to have sold the Excess Securities forthe Agent, and shall be required to transfer to the Agent any ProhibitedDistributions and proceeds of such sale, except to the extent that theCorporation grants written permission to the Purported Transferee to retain aportion of such sales proceeds not exceeding the amount that the PurportedTransferee would have received from the Agent pursuant to Section 9.6(a) ifthe Agent rather than the Purported Transferee had resold the ExcessSecurities. Disposition of Excess Securities by the Agent pursuant to this Section 9.6(b) shallbe deemed to occur simultaneously with the Prohibited Transfer to which theExcess Securities relate.

 

(c)  The Agent shallapply any proceeds of a sale by it of Excess Securities and, if the PurportedTransferee has previously resold the Excess Securities, any amounts received byit from a Purported Transferee, as follows: (i) first, such amounts shallbe paid to the Agent to the extent necessary to cover its costs and expensesincurred in connection with its duties hereunder; (ii) second, anyremaining amounts shall be paid to the Purported Transferee, up to the amountpaid by the Purported Transferee for the Excess Securities (or the fair marketvalue of the Excess Securities (A) calculated on the basis of the closingmarket price for the Corporation Securities on the NYSE AMEX, or such other nationalsecurities exchange on which the Corporation Securities are then listed oradmitted to trading, on the day before the Prohibited Transfer, (B) if theCorporation

 

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Securities are not listedor admitted to trading on any national securities exchange but are traded inthe over-the-counter market, calculated based upon the difference between thehighest bid and lowest asked prices, as such prices are reported by NASDAQ orany successor system on the day before the Prohibited Transfer or, if none, onthe last preceding day for which such quotations exist, or (C) if theCorporation Securities are neither listed nor admitted to trading on any stockexchange nor traded in the over-the-counter market, then as determined by theBoard of Directors, in its sole and absolute discretion, at the time of theProhibited Transfer to the Purported Transferee), which amount (or fair marketvalue) shall be determined by the Board of Directors in its sole and absolutediscretion; and (iii) third, any remaining amounts, subject to thelimitations imposed by the following proviso, shall be paid to one or moreorganizations qualifying under Section 501(c)(3) of the Code (or anycomparable successor provision) (“Section 501(c)(3)”) selected by theBoard of Directors; provided, however, that if the Excess Securities (includingany Excess Securities arising from a previous Prohibited Transfer not sold bythe Agent in a prior sale or sales), represent a 5% or greater Percentage StockOwnership in any class of Corporation Securities, then any such remainingamounts to the extent attributable to the disposition of the portion of suchExcess Securities exceeding a 5% Percentage Stock Ownership interest in suchclass shall be paid to two or more organizations qualifying under Section 501(c)(3) selectedby the Board of Directors.  The recourseof any Purported Transferee in respect of any Prohibited Transfer shall belimited to the amount payable to the Purported Transferee pursuant to clause (ii) ofthe preceding sentence. In no event shall the proceeds of any sale of ExcessSecurities pursuant to this Section 9.6 inure to the benefit of theCorporation.

 

(d)  If thePurported Transferee fails to surrender the Excess Securities or the proceedsof a sale thereof to the Agent within 30 days from the date on which theCorporation makes a written demand pursuant to Section 9.6(b) hereof,then the Corporation shall use its reasonable best efforts to enforce theprovisions hereof, including the institution of legal proceedings to compelsuch surrender.

 

(e)  The Corporationshall make the written demand described in Section 9.6(b) hereofwithin 30 days of the date on which the Board of Directors determines, in itssole and absolute discretion, that the attempted Transfer would result inExcess Securities; provided, however, that if the Corporation makes such demandat a later date, the provisions of Sections 9.1 through 9.6hereof shall apply nonetheless.

 

(f)  Anything hereinto the contrary notwithstanding, the Agent shall not act or be treated asacting as an agent for or on behalf of the Purported Transferee or for or onbehalf of the Corporation and shall have no right to bind any of them, incontract or otherwise, but shall act only to carry out the ministerialfunctions assigned to it in this Section 9.6.

 

Section 9.7 Board Authority.

 

### ***(a)  The Board of Directors shall have the power todetermine, in its sole and absolute discretion, all matters necessary forassessing compliance with this Article IX, including, without limitation, (a) theidentification of any Five-Percent Shareholder, (b) whether aTransfer is a 5% Transaction, a Prohibited Transfer or a Permitted Transfer, (c) thePercentage Stock Ownership in the Corporation of any Five-Percent Shareholder, (d) whetheran instrument constitutes Corporation Securities, (e) the amount (or fairmarket value) due to a Purported Transferee pursuant to Section 9.6(c),and (f) any other matters which the Board of Directors determines, in itssole and absolute discretion, to be relevant; and the determination of theBoard of Directors on such matters shall be conclusive and binding for all thepurposes of this Article IX.***

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(b)  Nothingcontained herein shall limit the authority of the Board of Directors to takesuch other action, in its sole and absolute discretion, to the extent permittedby law as it deems necessary or advisable to protect the Corporation, anydirect or indirect subsidiary thereof and the interests of the holders of theCorporation’s securities in preserving the Tax Benefit. Without limiting thegenerality of the foregoing, in the event of a change in law or TreasuryRegulations making one or more of the following actions necessary or desirable,the Board of Directors may (i) accelerate the Restriction Release Date, (ii) modifythe specific application of the Transfer restrictions set forth in Section 9.3hereof, or (iii) modify the definitions of any terms set forth in this Article IX;provided that the Board of Directors shall determine, in its sole and absolutediscretion, that such acceleration, extension, change or modification isreasonably necessary or advisable to preserve the Tax Benefit under the Codeand the Treasury Regulations thereunder or that the continuation of theserestrictions is no longer reasonably necessary for the preservation of the TaxBenefit.

 

(c)  In the case ofan ambiguity in the application of any of the provisions of this Article IX,including any definition contained in Section 9.2 of this Article IX,the Board of Directors shall have the power to determine, in its sole andabsolute discretion, the application of the provisions of this Article IXwith respect to any situation based on the facts known to it.  In the event this Article IX requires anaction by the Board of Directors and the Charter fails to provide specificguidance with respect to such action, the Board of Directors shall have thepower to determine, in its sole and absolute discretion, the action to be takenso long as such action is not contrary to the provisions of Sections 9.1, 9.2 or9.3.

 

Section 9.8 Miscellaneous.  Any provision in this Article IX whichis judicially determined to be prohibited, invalid or otherwise unenforceable(whether on its face or as applied to a particular stockholder, transferee orTransfer) under the laws of the State of Maryland shall be ineffective to theextent of such prohibition, invalidity or unenforceability without prohibiting,invalidating or rendering unenforceable the remaining provisions of this Article IXand of this Charter, which shall be thereafter interpreted as if theprohibited, invalid or unenforceable part were not contained herein, and, tothe maximum extent possible, in a manner consistent with preserving theCorporation or any direct or indirect subsidiary’s use of the Tax Benefits withoutany Section 382 limitation.

 

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Section 9.9 NYSE AMEX Transactions.  Nothing in this Article IX shallpreclude the settlement of any transaction entered into through the facilitiesof the NYSE AMEX or any other national securities exchange or automatedinter-dealer quotation system. The fact that the settlement of any transactionoccurs shall not negate the effect of any other provision of this Article IXand any Purported Transferee in such a transaction shall be subject to all ofthe provisions and limitations set forth in this Article IX.

 

Section 9.10 Enforcement.  The Corporation is authorized specifically toseek equitable relief, including injunctive relief, to enforce the provisionsof this Article IX.

 

Section 9.11 Non-Waiver.  No delay or failure on the part of theCorporation or the Board of Directors in exercising any right hereunder shalloperate as a waiver of any right of the Corporation or the Board of Directors,as the case may be, except to the extent specifically waived in writing.

 

Section 9.12 Notice to Corporation.  Any Person who acquires or attempts toacquire Corporation Securities in excess of the limitations set forth in this Article IXshall immediately give written notice to the Corporation of such event andshall provide to the Corporation such other information as the Corporation may,in its sole and absolute discretion, request in order to determine the effect,if any, of such purported transfer on the preservation and usage of the TaxBenefits.

 

Section 9.13 AdditionalDefinitions.  For purposes of thisCharter, “REIT” means a real estate investment trust under Sections 856 through860 of the Code, and “Charter” means this charter of the Corporation.”

 

# **THIRD**: (a) TheBoard of Directors of the Corporation, at a meeting duly noticed and helddeclared advisable, approved and recommended to stockholders for their approvalthe foregoing amendment by the vote required under Maryland law and the Charterand bylaws of the Corporation.

# ** **

### ***(b) The stockholders of theCorporation, at a meeting duly noticed and held, approved the foregoingamendment by the vote required under Maryland law and the Charter and bylaws ofthe Corporation.***

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### ***FOURTH***: The undersigned Senior Vice President acknowledgesthese Articles of Amendment to be the corporate act of the Corporation and, asto all matters or facts required to be verified under oath, the undersigned SeniorVice President acknowledges that to the best of his knowledge, information andbelief, these matters and facts are true in all material respects, and thisstatement is made under the penalties of perjury.

### *** ***

INWITNESS WHEREOF, Deerfield Capital Corp. has caused these presents to be signedin its name and on its behalf by its Senior Vice President this 19th day of May 2009.

 

 
|   | ATTEST:                  |   | Deerfield Capital Corp. |
|--------|--------------------------|--------|-------------------------|
|   | /s/  Robert A. Contreras |   | By:                     | /s/  Francis P. Straub III |
|   | Robert  A. Contreras     |   | Francis  P. Straub III  |
|   | Secretary                |   | Senior  Vice President  |

 

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