Common use of Dividends Clause in Contracts

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Dividends. (aA) Holders The holders of shares of the Series A Preferred Stock are entitled to receive, when, as and if authorized by the Board (or a duly authorized committee thereof), out of funds of the Corporation legally available for the payment of dividends, cumulative preferential dividends at the rate of the Yield, payable only in additional shares of Series A Preferred Stock; provided, that (i) in the event of a Breach other than a Breach due to a failure to redeem Series A Preferred Stock in accordance with Section 9 (Optional Redemption by Holders), the dividend rate of the Series A Preferred Stock shall increase by an increment of 2% per annum (such increment payable solely in U.S. dollars), which amount shall compound quarterly and accrue on a daily basis during the period starting from the date of occurrence through and including the date that the Breach is cured or (ii) in the event of a Breach due to a failure to redeem Series A Preferred Stock in accordance with Section 9 (Optional Redemption by Holders), the holders of such remaining unredeemed shares of Series A Preferred Stock shall be entitled to cumulative the Additional Payment. For the avoidance of doubt, the holders of the Series A Preferred Stock shall be entitled only to a single 2% per annum dividend rate increase during the continuance of any one or more Breaches subject to clause (i) and the holders of the Series A Preferred Stock whose shares of Series A Preferred Stock were to be redeemed on the Redemption Date, but were not, shall be entitled to only a single Additional Payment during the continuance of a Breach subject to clause (ii). (B) To the extent that dividends on the Series A Preferred Stock payable semiannuallyhave not been declared and paid, which such dividends shall be declared by cumulative and compound quarterly at the Board of Directors Yield from the most recent date to which dividends have been paid, or a duly authorized committee thereofif no dividends have been paid, out of from the assets of the Company legally available therefor, Issue Date and shall be payable semiannually commencing quarterly in arrears on the 180th day following the Issue Date (or the following Business Day January 15, April 15, July 15 and October 15 of each year or, if any such payment date is not a Business Day) , the next succeeding Business Day commencing [ ], 201[ ] (each such date being referred to herein as each, a “Dividend Payment Date”) at in the rate per annum form of 6% per share additional shares of Series A Preferred Stock, as calculated based on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either Preference (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability other than amounts in respect of such Deferred Dividend (andBreaches as described in Section 5(A), for the avoidance of doubt, such Deferred Dividend which shall be payable paid in addition to, and not in lieu of, any U.S. dollars). Any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable the Series A Preferred Stock for any other period that is shorter or longer than a full semiannual partial dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares Dividends will be payable to holders of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable Stock as they appear in respect the stock records of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on Corporation at the close of business on the day on applicable record date, which shall be the date set by the Board or, if not set, the last day of Directors or a duly authorized committee thereof declares the dividend payable calendar month immediately preceding the applicable Dividend Payment Date (each, a “Dividend Record Date”). (C) No dividends on shares of the Series A Preferred Stock shall be authorized by the Board or declared by the Corporation or paid or set apart for payment by the Corporation if such declaration or payment would be prohibited by law. (D) Notwithstanding the foregoing Section 5(C), dividends on the Series A Preferred Stock will accrue daily whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared or set aside. Notwithstanding anything Accrued but unpaid dividends on the Series A Preferred Stock will not bear interest and holders of the Series A Preferred Stock will not be entitled to any dividends in this excess of the full cumulative and compounded dividends described above. Any dividend payment made on the Series A Preferred Stock shall first be credited against the earliest accumulated but unpaid dividend due with respect to such shares that remains payable. (E) If, for any taxable year, the Corporation elects to designate as “capital gain dividends” (as defined in Section 3(a857 of the Internal Revenue Code of 1986, as amended (the “Code”)) any portion (the “Capital Gains Amount”) of the dividends (as determined for federal income tax purposes) paid or made available for the year to holders of all classes of stock (the “Total Dividends”), then the portion of the Capital Gains Amount that shall be allocable to the contrary, and without limiting any other remedy holders of the Series A Preferred Stock shall be the amount that the total dividends (as determined for federal income tax purposes) paid or made available to the Company holders of the Series A Preferred Stock for the year bears to the Total Dividends. The Corporation will make a similar allocation for each taxable year with respect to any undistributed long-term capital gains of the Corporation that are to be included in its stockholders’ long-term capital gains, based on the allocation of the Capital Gains Amount that would have resulted if such undistributed long-term capital gains had been distributed as “capital gains dividends” by the Corporation to its stockholders. (F) No dividends or other distributions (other than a dividend or distribution payable solely in shares of Junior Stock or cash in lieu of fractional shares) will be declared, made or paid or set apart for payment on any Junior Stock, nor may any Junior Stock be redeemed, purchased or otherwise acquired for any consideration (other partythan repurchases pursuant to binding contractual commitments of Junior Stock held by employees, dividends shall not accrue directors or be payable in respect consultants upon termination of their employment or services) by the Corporation or on its behalf (except by conversion of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company Series A Preferred Stock into or exchange for shares of Junior Stock) unless dividends are simultaneously declared on the Series A Preferred Stock, and full Accrued Dividends and Accumulated Dividends have been or contemporaneously are declared and paid, or declared and a sum sufficient for the payment thereof is set apart for such payment on the Series A Preferred Stock for all dividend periods ending on or prior to the date of such declaration, payment, redemption, purchase or acquisition; provided, that the foregoing restriction will not limit the acquisition of shares of Common Stock or the declaration or payment of cash dividends on Common Stock solely to the extent necessary to preserve the Corporation’s qualification as a REIT. (G) The holders of the Series A Preferred Stock at the close of business on a Dividend Record Date shall be entitled to receive the dividend payment on those shares on the corresponding Dividend Payment Date notwithstanding the conversion of such shares following that Dividend Record Date or the Corporation’s default in order to effect payment of the Stockholder Approval dividend due on that Dividend Payment Date. A holder of Series A Preferred Stock on a Dividend Record Date that surrenders (or whose transferor Holder was so obligatedtransferee surrenders) if any shares for conversion on the corresponding Dividend Payment Date shall receive the dividend payable by the Corporation on the Series A Preferred Stock on that date, and the converting holder need not include payment in the amount of such Holder (or such transferor Holder or dividend upon surrender of shares of the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendSeries A Preferred Stock for conversion.

Dividends. (a) Subject to the rights of holders of Senior Stock, Holders shall be entitled to receive, when, as and if declared by the Board out of funds of the Corporation legally available for payment, cumulative dividends at the Dividend Rate, payable in cash, by delivery of shares of Series A Preferred Stock shall be entitled or through any combination of cash and shares of Series A Preferred Stock at the Corporation’s sole election, as provided pursuant to cumulative dividends Section 4. Dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by payable quarterly in arrears at the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available thereforDividend Rate, and shall be payable semiannually commencing accumulate on a daily basis from the 180th day following most recent date as to which dividends have been paid, or, if no dividends have been paid, from the Initial Issue Date (whether or not (i) in any dividend period or periods any agreements of the following Business Day if any Corporation prohibit the current payment of dividends, (ii) there shall be earnings or funds of the Corporation legally available for the payment of such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law dividends or (yiii) under the terms Corporation declares the payment of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) dividends). Dividends shall not be declared by the Board of Directors, shall not be paid or payable quarterly in arrears on such each Dividend Payment Date and no liability shall be incurred in respect thereof(commencing on [●], and instead, such Deferred Dividend shall be declared, become payable and be paid and 2017) to the liability in respect thereof be incurred Holders as they appear on the first succeeding Corporation’s stock register at the Close of Business on the relevant Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Record Date). The amount of dividends Dividends payable for any other period that is shorter or longer less than a full semiannual quarterly dividend period will (based upon the number of days elapsed during the period) shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing . (b) If any Dividend Payment Date falls on a day that is not a Business Day, the required payment will be made on the next succeeding Business Day and following no interest or dividends on such payment will accrue or accumulate, as the Meeting End Datecase may be, in respect of the event that delay. (c) No dividend shall be declared or paid upon, or any sum of cash set apart for the payment of dividends are paid on shares upon, any outstanding share of Common Stock in any dividend period with respect to the Series A Preferred Stock with respect to any dividend period unless all accumulated dividends for all preceding dividend periods have been declared and paid upon, or a sufficient sum in cash or number of shares of Series A Preferred Stock have been set apart for the payment of such dividends upon, all outstanding shares of Series A Preferred Stock. (d) So long as any shares of Series A Preferred Stock remain outstanding, no dividends or other distributions (other than (x) in the case of Parity Stock, then a dividend shall or distribution payable solely in shares of Parity Stock or Junior Stock, (y) in the case of Junior Stock, a dividend or distribution payable solely in shares of Junior Stock and (z) cash in lieu of fractional shares) may be payable declared, made or paid upon, or set apart for payment upon, any Parity Stock or Junior Stock, nor may any Parity Stock or Junior Stock be redeemed, purchased or otherwise acquired for any consideration (or any money paid to or made available for a sinking fund for the redemption of any Parity Stock or Junior Stock) by the Corporation or on behalf of the Corporation or by any of the Corporation’s Subsidiaries, unless all accumulated and unpaid dividends for all preceding dividend periods have been or contemporaneously are declared and paid in respect full on, or a sufficient sum of each share cash or number of shares of Series A Preferred Stock for the payment thereof is set apart for such period in an amount equal dividends upon, the Series A Preferred Stock and any Parity Stock for all dividend payment periods ending on or prior to the greater date of such declaration, payment, redemption, purchase or acquisition. The foregoing limitation shall not apply to: (i) conversions into or exchanges for, (A) in the amount otherwise payable case of Parity Stock, shares of Parity Stock or Junior Stock or cash solely in respect lieu of fractional shares of Parity Stock or Junior Stock, and, (B) in the case of Junior Stock, shares of Junior Stock or cash solely in lieu of fractional shares of Junior Stock; (ii) payments in connection with the satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (and payment of any corresponding requisite amounts to the appropriate governmental authority); (iii) purchases, redemptions or other acquisitions of Parity Stock or Junior Stock in connection with the administration of any benefit or other incentive plan, including any employment contract, in the ordinary course of business; (iv) any dividends or distributions of rights in connection with a stockholders’ rights plan or any redemption or repurchase of rights pursuant to any stockholders’ rights plan; or (v) the deemed purchase or acquisition of fractional interests in shares of Parity Stock or Junior Stock pursuant to the conversion or exchange provisions of such Parity Stock or Junior Stock or the security being converted or exchanged. Notwithstanding the foregoing, if full dividends have not been paid on the Series A Preferred Stock and any Parity Stock, dividends may be declared and paid on the Series A Preferred Stock and such Parity Stock so long as the dividends are declared and paid pro rata so that the amounts of dividends declared per share on the shares of Series A Preferred Stock and shares of such Parity Stock shall in accordance with all cases bear to each other the foregoing paragraph same ratio that accumulated and (ii) the product of (A) the aggregate unpaid dividends payable per share of Common Stock in such dividend period times (Bwhether or not declared) on the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes and shares of this Section 3(a)such Parity Stock bear to each other, a in proportion to their respective liquidation preferences. (e) Holders of shares of Series A Preferred Stock shall not be entitled to any dividend period with respect to in excess of full cumulative dividends. (f) Holders at the Close of Business on a Dividend Payment Record Date is shall be entitled to receive, when, as and if declared by the period commencing Board, out of funds legally available for payment, the dividend payment on their respective shares of Series A Preferred Stock on the preceding Dividend Payment Date (or, if there is no preceding corresponding Dividend Payment Date; provided, however, that shares of Series A Preferred Stock surrendered for conversion during the Issue Date) period between the Close of Business on any Dividend Record Date and ending the Close of Business on the day immediately prior Conversion Date or the Mandatory Conversion Date, as applicable, shall only be entitled to the next Dividend Payment dividends accrued and unpaid through the Conversion Date or the Mandatory Conversion Date. Dividends , respectively. (g) Subject to the foregoing, such dividends (payable on a Dividend Payment Date shall in cash, securities or other property) as may be payable to Holders of record on the close of business on the day on which determined by the Board may be declared and paid on any of Directors or a duly authorized committee thereof declares the dividend payable (eachCorporation’s securities, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) including Common Stock, from time to the contrarytime out of funds legally available for such payment, and without limiting any other remedy available to the Company or any other party, dividends Holders shall not accrue or be payable entitled to participate in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividends.

Dividends. (a) Holders of the issued and outstanding shares of Series A Preferred Stock shall be entitled to cumulative receive, out of assets legally available for the payment of dividends, dividends on the Series A terms described below: (i) Holders of shares of Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to each Common Stock Dividend Record Date, all shares of Preferred Stock then outstanding were converted into shares of Common Stock (including any Excess Conversion Shares and disregarding for this purpose the last sentence of Section 6(a)(i)(B)). Dividends payable semiannuallypursuant to this Section 4(a)(i) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, which and no dividends shall be declared payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the Board of Directors or a duly authorized committee thereof, out same time to the Holders of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date Preferred Stock. (or the following Business Day if ii) In addition to any such payment date is not a Business Day) (each such date being referred dividends pursuant to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment DateSection 4(a)(i), the Company is not permitted to declare or pay such dividend or incur such liability either (x) Corporation shall pay, if, as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be and when declared by the Board of Directors, shall not be paid or payable out of funds legally available therefor, on such each Preferred Dividend Payment Date dividends on each outstanding share of Preferred Stock (the “Preferred Dividends”) at a rate per annum equal to the Dividend Rate as further specified in this Section 4(a)(ii) and no liability in accordance with Section 4(a)(iii) below. Preferred Dividends on each share of Preferred Stock shall accrue and accumulate on a daily basis from the Issuance Date of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends, shall compound quarterly on each Preferred Dividend Payment Date (to the extent not paid on such Preferred Dividend Payment Date) and shall be incurred payable quarterly in respect thereofarrears, if, as and insteadwhen so authorized and declared by the Board of Directors, such Deferred on each Preferred Dividend shall be declaredPayment Date, become payable and be paid and the liability in respect thereof be incurred commencing on the first succeeding Preferred Dividend Payment Date on which following the Company is not prohibited from declaring, paying and incurring the liability in respect Issuance Date of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)share. The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period Preferred Dividends accruing with respect to the Series A any share of Preferred Stock, then a dividend Stock for any day shall be payable determined by dividing (x) the Implied Quarterly Dividend Amount as of such day by (y) the actual number of days in the applicable Payment Period; provided that if, during any current Payment Period, Accrued Dividends are paid in respect of each one or more prior Payment Periods, then after the date of such payment, the amount of Preferred Dividends accruing with respect to any share of Series A Preferred Stock for such period in an amount equal to the greater of any day shall be determined by dividing (ix) the Implied Quarterly Dividend Amount (recalculated to take into account such payment of Accrued Dividends) by (y) the actual number of days in such current Payment Period. The amount otherwise of Preferred Dividends payable in with respect of such to any share of Series A Preferred Stock for any Payment Period shall equal the sum of the Preferred Dividends accrued in accordance with the foregoing paragraph prior sentence of this Section 4(a)(ii) with respect to such share during such Payment Period. Preferred Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (iiwith $.005 being rounded upward). (iii) The Preferred Dividends may, at the product option of the Corporation, be paid in cash or by issuing fully paid and nonassessable shares of Preferred Stock; provided that (A) Preferred Dividends paid on any date shall be paid by issuing fully paid and nonassessable shares of Preferred Stock to the aggregate dividends payable per share extent payment in cash on such date would be prohibited under the terms, conditions or provisions of Common Stock in such dividend period times any of the Debt Financing Documents and (B) any Base Amount Accrued Dividends shall be paid by issuing fully paid and nonassessable shares of Preferred Stock; and provided further that, if the Corporation elects to pay any Preferred Dividends in shares of Preferred Stock with respect to any Payment Period, the Corporation shall make the same election with respect to all Preferred Dividends paid with respect to such Payment Period. If the Corporation pays any Preferred Dividend in shares of Preferred Stock, the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibleto be paid in respect of such Preferred Dividend will be equal to the number of shares (including fractional shares) that have an aggregate Liquidation Preference equal to the amount of such Preferred Dividend. (iv) Each Participating Dividend or Preferred Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto. For purposes Each Participating Dividend or Preferred Dividend shall be payable to the Holders of this Section 3(aPreferred Stock as they appear on the Register at the close of business on the record date designated by the Board of Directors for such dividends (each such date, a “Dividend Payment Record Date”), a dividend period which (i) with respect to a Dividend Payment Date is Participating Dividends, shall be the period commencing on same day as the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, record date for the Issue Date) and ending on the day immediately prior payment of dividends to the next holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Preferred Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Preferred Dividend Payment Date. Notwithstanding the foregoing, but subject to the proviso in the first sentence of Section 4(a)(iii), the Base Amount Accrued Dividends payable on a Dividend Payment Date shall may be payable declared and paid in cash or in shares of Preferred Stock at any time to Holders of record on the close Dividend Payment Record Date therefor. (b) Upon the occurrence of business on a Triggering Event, the day Dividend Rate shall increase by the Noncompliance Additional Rate from and including the date on which the Board of Directors or a duly authorized committee thereof declares Triggering Event shall occur and be continuing through but excluding the dividend payable (each, a “date on which all then occurring Triggering Events are no longer continuing. The Dividend Record Date”). Notwithstanding anything in Rate shall not be increased further pursuant to this Section 3(a4(b) for a subsequent Triggering Event occurring while the Dividend Rate is already increased pursuant to this Section 4(b). (c) At any time during which a Triggering Event shall be occurring, without the contraryconsent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, and without limiting any other remedy available to the Company or any other party, no dividends shall be declared or paid or set apart for payment, or other distributions declared or made, upon any Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired for any consideration (nor shall any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such Junior Securities) by the Corporation, directly or indirectly (except, subject to and in accordance with the provisions of Section 6 hereof, by conversion into or exchange for Junior Securities or the payment of cash in lieu of fractional shares in connection therewith). (d) Without the consent of the Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, the Corporation shall not accrue (i) declare, pay or be payable in respect set aside for payment any dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases of shares initially issued of Common Stock from employees, officers or directors of the Corporation in the ordinary course of business) for any Holder who is contractually obligated to appear and vote in favor consideration or pay any moneys or make available for a sinking fund for the redemption of any proposal made at a meeting shares of stockholders such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the Company Corporation’s assets would exceed the sum of its debts (including for this purpose the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation, in order its good faith judgment, would be able to effect pay all of its debts (including the Stockholder Approval aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (or whose transferor Holder was so obligatedC) if such Holder action is otherwise in compliance with applicable Law. (or such transferor Holder or e) For the Affiliates avoidance of eitherdoubt, the consequences described in Sections 4(b), (c) fails so to appear and vote (d) above shall constitute the sole and exclusive remedies of the Holders upon the occurrence of the Triggering Event described in favor. Any shares issued to such Holders shall bear clause (vii) of the Stockholder Approval Legenddefinition thereof.

Dividends. The Parent and the Borrower will not, nor will they permit any Subsidiary to, declare or pay any dividend or make any distribution on its capital stock (other than dividends payable in its own capital stock) or redeem, repurchase or otherwise acquire or retire any of its capital stock at any time outstanding, except that (i) any Subsidiary of the Borrower may declare and pay dividends or make distributions to the Borrower or to any other Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower which is not a Wholly-Owned Subsidiary may pay dividends to its shareholders generally so long as the Borrower or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such dividends receives at least its proportionate share thereof, (iii) the Borrower may declare and make dividends or distributions to the Parent to enable the Parent to, and the Parent may (a) Holders pay any income, franchise or like taxes, (b) pay its operating expenses (including, without limitation, legal, accounting, reporting, listing and similar expenses) in an aggregate amount not exceeding $5,000,000 in any fiscal year (excluding in any event non-cash charges related to employee compensation or compensation to non-executive members of shares the Parent’s board of Series A Preferred Stock directors) and (c) so long as no Default or Unmatured Default shall be entitled continuing or result therefrom, repurchase its common stock and warrants and/or redeem or repurchase vested management options, in each case, from directors, officers and employees of the Parent and its Subsidiaries, and (iv) so long as no Default or Unmatured Default shall be continuing or result therefrom, the Borrower may make distributions to cumulative dividends the Parent and the Parent may redeem, repurchase, acquire or retire an amount of its capital stock or warrants or options therefor, or declare and pay any dividend or make any distribution on its capital stock (collectively, “Distributions”), either (a) if at the time of making such Distribution the Leverage Ratio (calculated on a pro forma basis based on the Series A Preferred Stock payable semiannually, which dividends shall be declared by Parent’s most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the Board date of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreementfinancial statements, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date Distribution and no liability shall be any Indebtedness incurred in respect thereofconnection therewith, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock all in accordance with the foregoing paragraph terms of this Agreement) is less than or equal to 2.75 to 1.00, on an unlimited basis, and (iib) if at the product time of making such Distribution the Leverage Ratio (A) calculated on a pro forma basis based on the aggregate dividends payable per share Parent’s most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the date of Common Stock such financial statements, such Distribution and any Indebtedness incurred in such dividend period times (B) connection therewith, all in accordance with the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes terms of this Section 3(a), a dividend period with respect Agreement) is greater than 2.75 to a Dividend 1.00 in an amount not greater than the Maximum Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendAmount.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled Subject to cumulative dividends on sub-clause (b) below, the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available thereforParent will not, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if will not permit any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatits Subsidiaries to, in the event that on any Dividend Payment Dateauthorize, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period Dividends with respect to the Series A Preferred StockParent or any of its Subsidiaries, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of except that: (i) Subsidiaries of the amount otherwise Parent may pay Dividends to another member of the NCLC Group; provided that the Borrower shall procure that any Dividends or other distributions and interest paid or payable in respect connection with such Dividends or other distributions to NCL International Ltd., NCL America Holdings, LLC or Arrasas Limited shall be received promptly by the Parent directly or indirectly by way of such share of Series A Preferred Stock in accordance with the foregoing paragraph and Dividend; (ii) the product Parent may pay Dividends in respect of (A) the aggregate dividends payable per share tax liability to each relevant jurisdiction in respect of Common consolidated, combined, unitary or affiliated tax returns for each relevant jurisdiction of the NCLC Group or holder of the Parent’s Capital Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to income taxable as a Dividend Payment Date is result of any member of the NCLC Group being taxed as a pass-through entity for U.S. Federal, state and local income tax purposes or attributable to any member of the NCLC Group; and (iii) at any time following the listing of the ordinary Capital Stock of the Parent (or parent company of the Parent) on an Approved Stock Exchange, the Parent may pay Dividends in an amount not to exceed 50% of Consolidated Net Income of the Parent and its Subsidiaries for the period (taken as one period) commencing on the preceding Dividend Payment Date (orJanuary 1, if there is no preceding Dividend Payment Date, the Issue Date) 2010 and ending on the day immediately date prior to such Dividend for which financial statements are available so long as (x) no Default or Event or Default exists or would result from such Dividend and (y) at the next time of such Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable and after giving effect thereto the ratio of Total Net Funded Debt to Holders of record on Consolidated EBITDA for the close of business on the day on four consecutive fiscal quarters last ended for which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) financial statements have been provided to the contrary, and without limiting any other remedy available Facility Agent pursuant to the Company or any other party, dividends Section 9.01 is less than 5.50:1.00. (b) The Parent shall not accrue authorize, declare or be payable pay any Dividends between April 1, 2020 and the latest Maturity Date in respect of shares initially issued the Deferred Loans, provided that any Holder who is contractually obligated to appear and vote breach of this sub-clause shall not result in favor an Event of any proposal made at Default but will instead result in a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendmandatory prepayment event under Section 4.02(d).

Dividends. (a) Holders of So long as any shares of Series A Preferred Stock shall be outstanding, the holders of such Preferred Stock shall be entitled to cumulative receive out of any funds legally available therefor, preferential dividends at the Dividend Rate on the Series A Preferred Stock Liquidation Preference hereunder, payable semiannually, which quarterly on the last Business Day of each calendar quarter. Such dividends shall be cumulative and begin to accrue from the Original Issue Date, whether or not declared by the Board of Directors and whether or a duly authorized committee thereof, out of the not there shall be net profits or net assets of the Company legally available therefor, and shall for the payment of those dividends. (b) The dividend will be payable semiannually commencing on (i) prior to the 180th day following effective date of a Chapter 11 plan of reorganization with respect to the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatCompany, in the event that on any Dividend Payment Dateform of additional shares of Preferred Stock having a Liquidation Preference equal to such dividend amount, or (ii) following the effective date of a Chapter 11 plan of reorganization with respect to the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under and at the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End DateCompany's election, in the event that dividends are paid on cash or in shares of Common Stock in having an Appraised Value equal to such cash dividend payment. (c) So long as any dividend period with respect to the Series A shares of Preferred Stock, then a dividend Stock shall be payable outstanding, (i) no dividend whatsoever shall be paid or declared, and no distribution shall be made, on account of any Common Stock until all dividends in respect of each share of Series A the Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable all past and current dividend periods have been paid and all amounts in respect of such share the redemption of Series A Preferred Stock in accordance with the foregoing paragraph pursuant to Section 6 have been paid, and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of no shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors purchased, redeemed or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to acquired by the Company and no funds shall be paid into or any other partyset aside or made available for a sinking fund for the purchase, redemption or acquisition thereof until all dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear the Preferred Stock for all past and vote current dividend periods have been paid and all amounts in favor of any proposal made at a meeting of stockholders respect of the Company in order redemption of Preferred Stock pursuant to effect Section 6 have been paid. (d) Notwithstanding anything to the Stockholder Approval (contrary contained herein, if, on any date, an Event of Default shall have occurred and be continuing, whether or whose transferor Holder was so obligated) if not by reason of the absence of legally available funds therefor, then the Dividend Rate on the shares of Preferred Stock shall be increased to a compound annual rate of 16%, for as long as such Holder (or such transferor Holder or the Affiliates Event of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendDefault is continuing.

Dividends. (a) Holders of shares Each Holder of Series A Preferred Stock shall be entitled to cumulative receive, when, as and if declared by the Board of Directors, out of funds legally available therefor, cash dividends on the each share of Series A Preferred Stock at a rate per annum equal to 13.0% of the Liquidation Preference of such share. All dividends shall be cumulative, whether or not earned or declared, and shall accrue on a daily basis from the date of issuance of Series A Preferred Stock, and shall be payable semiannuallyannually in arrears on each Dividend Payment Date, commencing on the first Dividend Payment Date after the date of issuance of such Series A Preferred Stock. Each dividend on Series A Preferred Stock shall be payable to the Holders of record of Series A Preferred Stock as they appear on the stock register of the Corporation on such record date as may be fixed by the Board of Directors, which record date shall not be less than ten nor more than 60 days prior to the applicable Dividend Payment Date. In the event of the repurchase of any shares of Series A Preferred Stock, dividends shall cease to accrue in respect of shares of Series A Preferred Stock on the date of their repurchase by the Corporation unless the Corporation shall have failed to pay the relevant repurchase price on the date fixed for repurchase. Notwithstanding anything to the contrary set forth above, unless and until such dividends are declared by the Board of Directors, there shall be no obligation to pay such dividends in cash; provided, that such dividends shall continue to cumulate and shall be paid at the time of repurchase, in the event of their repurchase, as provided herein if not earlier declared and paid. (b) All dividends paid with respect to shares of Series A Preferred Stock pursuant to paragraph A(3)(a) shall be paid pro rata to the Holders entitled thereto. (c) Dividends on account of arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders of record on any date as may be fixed by the Board of Directors, which date is not more than 30 days prior to the payment of such dividends. (d) No full dividends shall be declared by the Board of Directors or paid or funds set apart for the payment of dividends or other distributions on any Series A Parity Securities for any period, and no Series A Parity Securities may be repurchased, redeemed or otherwise retired, nor may funds be set apart for such payment, unless (i) full Accumulated Dividends have been paid or set apart for such payment on the Series A Preferred Stock and Series A Parity Securities for all Dividend Periods terminating on or prior to the date of payment of such full dividends or distributions on, or such repurchase or redemption of, such Series A Parity Securities (the "Series A Parity Payment Date") and (ii) an amount equal to a duly authorized committee thereof, out prorated dividend on the Series A Preferred Stock and Series A Parity Securities at the customary dividend rates for such securities for the period from the Dividend Payment Date immediately prior to the Series A Parity Payment Date to the Series A Parity Payment Date have been paid or set apart for payment. In the event that such dividends are not paid in full or set apart for payment with respect to all outstanding shares of Series A Preferred Stock and of any Series A Parity Securities and funds available for payment of dividends shall be insufficient to permit payment in full to the holders of all such stock of the assets full preferential amounts to which they are then entitled, then the entire amount available for payment of dividends shall be distributed ratably among all such holders of Series A Preferred Stock and of any Series A Parity Securities in proportion to the full amount to which they would otherwise be respectively entitled. (e) The Holders of Series A Preferred Stock shall be entitled to receive the dividends provided for in paragraph A(3)(a) hereof in preference to and in priority over any dividends upon any of the Company legally available thereforSeries A Junior Securities, so that if at any time full Accumulated Dividends on all shares of Series A Preferred Stock then outstanding have not been paid for all Dividend Periods then elapsed and shall be payable semiannually commencing a prorated dividend on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) Series A Preferred Stock at the rate per annum of 6% per share on aforesaid from the Liquidation Preference; provided that, in the event that on any Dividend Payment DateDate immediately preceding the Series A Junior Payment Date (as defined below) to the Series A Junior Payment Date have not been paid or set aside for payment, the Company is not permitted amount of such unpaid dividends shall be paid before any sum shall be set aside for or applied by the Corporation to declare the purchase, redemption or pay such other acquisition for value of any shares of Series A Junior Securities (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) other distribution shall not be declared by the Board of Directors, shall not be paid or payable declared and set apart for payment on any Series A Junior Securities (the date of any such Dividend actions to be referred to as the "Series A Junior Payment Date Date"); provided, however, that the foregoing shall not (i) prohibit the Corporation from repurchasing shares of Series A Junior Securities from a Holder who is, or was, a director or employee of the Corporation (or an affiliate of the Corporation) and no liability shall be incurred in respect thereof(ii) prohibit the Corporation from making dividends, and insteadother distributions, such Deferred Dividend shall be declaredredemptions, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability repurchases or acquisitions in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be Series A Junior Securities payable in addition to, Series A Junior Securities and not cash in lieu of, any dividend which would ordinarily be of fractional shares of such Series A Junior Securities. (f) Dividends payable on such succeeding Dividend Payment Date). The amount of dividends payable Series A Preferred Stock for any other period that is shorter or longer less than a full semiannual dividend period will one year shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on months and following the Meeting End Date, actual number of days elapsed in the event that period for which such dividends are payable. (g) The Corporation shall not claim any deduction from gross income for dividends paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with any Federal income tax return, claim for refund, or other statement, report or submission made to the Internal Revenue Service, and shall make any election or take any similar action to effectuate the foregoing paragraph except, in each case, if there shall be a change in law such that the Corporation may claim such dividends as deductions from gross income without affecting the ability of the Holders to claim the dividends received deduction under Section 243(a)(1) of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision). At the reasonable request of any Holder (and (ii) at the product expense of (A) such Holder), the aggregate Corporation shall join in the submission to the Internal Revenue Service of a request for a ruling that the dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of paid on Series A Preferred Stock is then convertibleshall be eligible for the dividends received deduction under Section 243(a) (1) of the Code (or any successor provision). For purposes In addition, the Corporation shall cooperate with any Holder (at the expense of such Holder) in any litigation, appeal or other proceeding relating to the eligibility for the dividends received deduction under Section 243(a)(l) of the Code (or any successor provision) of any dividends (within the meaning of Section 316(a) of the Code or any successor provision) paid on Series A Preferred Stock. To the extent possible, the principles of this Section 3(a), a dividend period paragraph A(3)(g) shall also apply with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) state and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendlocal income taxes.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled Subject to cumulative dividends its ability to do so under applicable law, the Buyer agrees to pay the First Year Dividend to its shareholders on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available thereforFirst Anniversary. (b) The Seller shall, and shall be payable semiannually commencing on cause each other Registrable Securities Holder holding Dividend Waiver Securities to, enter into a Dividend Waiver Agreement as required under Section 3(c)(ii) hereof. (c) EIAC and the 180th day following Buyer shall cause the Issue Date Initial Stockholders, the directors and officers of EIAC and their respective Affiliates holding Dividend Waiver Securities to enter into a Dividend Waiver Agreement as required under Section 3(c)(ii) hereof. (d) Subject to the restrictions contained in Section 6(h), a Person described in Section 7(b) or the following Business Day if any such payment date is not a Business Day(c) may: (each such date being referred to herein as a “Dividend Payment Date”i) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on sell any Dividend Payment DateWaiver Securities to an unrelated third party free of any restrictions imposed by a Dividend Waiver Agreement, the Company is not permitted and upon such sale, and pursuant to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreementthe Dividend Escrow Agreement, credit agreementif applicable, guaranty, or related agreement, the Escrow Agent shall release such dividend (a “Deferred Dividend”) Dividend Waiver Securities from escrow upon receipt by it of the agreed consideration therefor and shall not pay to the seller the amount of the consideration received less such amount as would be declared by necessary to pay the Board of Directors, shall not be paid or payable First Year Dividend on such Dividend Payment Date and no liability Waiver Securities, which amount shall be incurred retained by the Escrow Agent and held in respect thereof, escrow pursuant to the terms of the Dividend Escrow Agreement. Any amounts deposited in escrow pursuant to this paragraph and instead, such Deferred not used to pay the First Year Dividend shall be declaredrefunded, become payable and be paid and together with any interest accrued thereon, to such seller upon the liability in respect thereof be incurred on payment of the first succeeding Dividend Payment Date on which the Company is not prohibited from declaringFirst Year Dividend; and (ii) exercise any warrants, paying and incurring the liability rights or other options in respect of such Deferred any Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition toWaiver Securities, and not in lieu ofupon notifying the Escrow Agent of such exercise the Escrow Agent shall promptly take all such steps as are necessary to exercise such warrants, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any rights or other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable options in respect of each share any Dividend Waiver Securities, provided that any shares of Series A Preferred Buyer Common Stock for issuable upon any such period in an amount equal exercise shall remain subject to the greater applicable Dividend Waiver Agreement and shall be held in escrow by the Escrow Agent and pursuant to the terms of the Dividend Escrow Agreement. (ie) The Buyer shall be obligated and agrees to pay any and all expenses of the amount otherwise payable Escrow Agent in respect of such share of Series A Preferred Stock in accordance connection with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendEscrow Agreement.

Dividends. (a) Holders The holders of shares of the then outstanding Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when and as declared by the Board of Directors or a duly authorized committee thereof, of the Corporation out of the assets of the Company any funds legally available therefor, and shall be dividends at the rate of $2.00 per share per year, payable semiannually commencing in cash, except as provided below, in equal amounts quarterly on the 180th day following the Issue Date (fifteenth day, or the following Business Day if any such payment date is not a Business Day) , the next succeeding Business Day, of January, April, July and October in each year, beginning ______________, 1997 (each such date day being referred hereinafter called a "Quarterly Dividend Date" and each period ending on a Quarterly Dividend Date being hereinafter called a "Dividend Period"), to herein as a “Dividend Payment Date”) shareholders of record at the rate per annum close of 6% per share business on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) date as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared fixed by the Board of DirectorsDirectors of the Corporation at the time of declaration of the dividend (the "Record Date"), shall not be paid or payable on such Dividend Payment Date and no liability which shall be incurred in respect thereof, and instead, such Deferred not fewer than 10 nor more than 30 days preceding the Quarterly Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends any dividend payable for the initial Dividend Period and for any other period that is Dividend Period shorter or longer than a full semiannual dividend period will Dividend Period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are Dividends paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a per share basis among all such shares at the time outstanding. Notwithstanding the foregoing, for any twelve (12) Dividend Periods the Company shall have the right to pay the dividend in additional shares of Series A Preferred Stock determined by dividing the total amount of the dividend to be paid in shares of Series A Preferred Stock by the Liquidation Value (as defined herein) per share of Series A Preferred Stock. The issuance of additional shares of Series A Preferred Stock pursuant to this subparagraph (3) shall be evidenced by a stock certificate representing such shares issued on the related Quarterly Dividend Date and delivered on or immediately thereafter. Notwithstanding any other provision hereof, then no fractional shares of the Corporation shall be issued in connection with the payment of any dividend on Series A Preferred Stock in additional shares of Series A Preferred Stock. Instead, any holder of outstanding Series A Preferred Stock having a fractional interest arising upon the payment of a dividend shall in additional shares of Series A Preferred Stock shall, on the related Quarterly Dividend Date, be payable paid an amount in respect cash equal to the Liquidation Value times the fraction of each a share of Series A Preferred Stock for to which such period in an amount equal holder would otherwise be entitled. In the event the Company fails to pay any dividend on the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance on any Quarterly Dividend Date, the Company shall not pay any dividends on any other class of stock of the Company (other than (i) pro rata with other securities of the Company ranking pari passu with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a or (ii) with Junior Shares) until such dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment DateSeries A Preferred Stock has been paid. Except as provided in these Articles Supplementary, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends Series A Preferred Stock shall not accrue be entitled to participate in the earnings or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders assets of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCorporation.

Dividends. (a) Holders Upon the grant of shares of Series A Preferred Stock Common Shares pursuant to Section 2(b)(ii), the Grantee shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (andreceive, for the avoidance of doubteach Common Share granted, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater per share amount of all dividends declared with respect to Common Shares with a record date on or after the Effective Date to and including the date of the Termination of Employment of the Grantee. After the date of grant of the Common Shares pursuant to Section 2(b)(ii), the holder of such Common Shares shall be entitled to receive dividends in the same manner as dividends are paid to all other holders of Common Shares. (b) Upon the grant of Common Shares pursuant to Section 2(b)(iii), the Grantee shall be entitled to receive, for each Common Share granted, an amount equal to the per share amount of all dividends declared with respect to Common Shares with a record date on or after the Effective Date to and including the date of the Change in Control. After the date of grant of the Common Shares pursuant to Section 2(b)(iii), the holder of such Common Shares shall be entitled to receive dividends in the same manner as dividends are paid to all other holders of Common Shares. (c) Upon grant of the Restricted Shares pursuant to Section 3(a), the Grantee shall be entitled to receive, for each of the Restricted Shares (whether vested or unvested), an amount in cash equal to the per share amount of all dividends declared with respect to the Common Shares with a record date on or after the Effective Date and before the Share Issuance Date (other than those with respect to which an adjustment was made pursuant to Section 6); provided that, notwithstanding the foregoing, if the number of Restricted Shares received pursuant to Section 3(a) is reduced so that the Fair Market Value of the Common Shares underlying the Restricted Shares received is less than or equal to the Maximum Value (as required under Section 3), then the amount the Grantee shall be entitled to receive pursuant to this Section 4(c) shall equal the product of (i) the per share amount otherwise payable in of all dividends declared with respect of such share of Series A Preferred Stock in accordance to the Common Shares with a record date on or after the foregoing paragraph Effective Date and before Share Issuance Date (other than those with respect to which an adjustment was made pursuant to Section 6) and (ii) the product number of Restricted Shares the Grantee would have received had no such reduction occurred. After the Share Issuance Date, the holder of Restricted Shares (Awhether vested or unvested) shall be entitled to receive the aggregate dividends payable per share amount of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period any dividends declared with respect to a Dividend Payment Date is the period commencing Common Shares for each Restricted Share (whether vested or unvested) held on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, record date of each such dividend and each such dividend shall be paid in the Issue Date) and ending on the day immediately prior same manner as dividends are paid to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable Common Shares. (each, a “Dividend Record Date”). Notwithstanding anything d) Except as provided in this Section 3(a) to 4, the contrary, and without limiting any other remedy available to the Company or any other party, dividends Grantee shall not accrue be entitled to receive any payments in lieu of or be payable in connection with dividends with respect of shares initially issued to any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendNotional Units and/or Restricted Shares.

Dividends. (ai) Holders Each holder of shares of the outstanding Series A Preferred Stock (together, the “Holders”) shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyentitled, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) receive cumulative dividends at the rate per annum of 65.75% per share on the liquidation preference thereof of $50 per share of Series A Preferred Stock subject to adjustment as provided in Section 15(ii) hereof (such liquidation preference, as adjusted from time to time, the “Liquidation Preference; provided that”), payable in cash, payable quarterly in arrears (such rate, the event that “Dividend Rate”). Dividends payable for each full dividend period will be computed by dividing the Dividend Rate by four and shall be payable in arrears on any each Dividend Payment Date commencing on the Dividend Payment Date next following the Effective Time of the Merger (the “First Dividend Payment Date”) for the quarterly period ending immediately prior to such Dividend Payment Date, to the holders of record of Series A Preferred Stock at the close of business on the Dividend Record Date applicable to such Dividend Payment Date. Such dividends shall accumulate from the most recent date as to which dividends shall have been paid or, if no dividends have been paid, from the Last Edge Payment Date (as defined below) (whether or not in any dividend period or periods there shall be assets of the Company legally available for the payment of such dividends in whole or in part). The initial dividend on the Series A Preferred Stock, for the quarterly period commencing on the day after the quarterly period ending immediately prior to the Last Edge Payment Date and ending immediately prior to the First Dividend Payment Date, shall be $0.71875 per share and shall be payable, when, as and if declared, on the First Dividend Payment Date. Each subsequent quarterly dividend on the Series A Preferred Stock, when, as and if declared, shall be $0.71875 per share. Dividends payable for any partial dividend period shall be computed on the basis of days elapsed over a 360 day year consisting of twelve 30 day months. The most recent date as to which dividends shall have been paid on the 5.75% Series A Cumulative Convertible Perpetual Preferred Stock of Edge Petroleum Corporation, a Delaware corporation (“Edge”), is not permitted referred to declare herein as (the “Last Edge Payment Date”). (ii) No dividend will be declared or paid upon, or any sum set apart for the payment of dividends upon, any outstanding share of the Series A Preferred Stock with respect to any dividend period unless all dividends for all preceding dividend periods have been declared and paid or declared and a sufficient sum of money or number of shares of Common Stock have been set apart for the payment of such dividend, upon all outstanding shares of Series A Preferred Stock. (iii) The Company is only obligated to pay such a dividend on the Series A Preferred Stock if the Board of Directors declares the dividend payable and the Company has assets that legally can be used to the pay the dividend. (iv) No dividends or other distributions (other than a dividend or incur such liability either distribution payable solely in shares of Parity Stock or Junior Stock (xin the case of Parity Stock) as or Junior Stock (in the case of Junior Stock), rights issued under “poison pill” rights plans to purchase Junior Stock and cash paid in lieu of fractional shares in accordance with Section 13 hereof) may be declared, made or paid, or set apart for payment upon, any Parity Stock or Junior Stock, nor may any Parity Stock or Junior Stock be redeemed, purchased or otherwise acquired for any consideration (or any money paid to or made available for a matter of law or (y) under sinking fund for the terms redemption of any loan agreementParity Stock or Junior Stock) by or on behalf of the Company (except by conversion into or exchange for shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock)), credit agreement, guarantyunless all accumulated and unpaid dividends shall have been or contemporaneously are declared and paid, or related agreementare declared and a sum of cash sufficient for the payment thereof is set apart for such payment, on the Series A Preferred Stock and any Parity Stock for all dividend payment periods terminating on or prior to the date of such declaration, payment, redemption, purchase or acquisition. Notwithstanding the foregoing, if full dividends have not been paid on the Series A Preferred Stock and any Parity Stock, dividends may be declared and paid on the Series A Preferred Stock and such Parity Stock so long as the dividends are declared and paid pro rata so that the amounts of dividends declared per share on the Series A Preferred Stock and such Parity Stock will in all cases bear to each other the same ratio that accumulated and unpaid dividends per share on the shares of Series A Preferred Stock and such other Parity Stock bear to each other. (v) Holders shall not be entitled to any dividends on the Series A Preferred Stock in excess of full cumulative dividends calculated pursuant to this Section 2. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series A Preferred Stock that may be in arrears. (vi) With respect to dividends that have been declared for payment, a Holder at the close of business on a Dividend Record Date will be entitled to receive the dividend payment on its Series A Preferred Stock on the next succeeding Dividend Payment Date notwithstanding the Company’s default in payment of the dividend due on that Dividend Payment Date. (vii) Dividends in arrears on the Series A Preferred Stock in respect of a dividend period not declared for payment (“Deferred DividendDelayed Dividends”) shall not may be declared by the Board of Directors and paid on any date fixed by the Board of Directors, shall whether or not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding a Dividend Payment Date), to the Holders of record as they appear on the stock register of the Company on a record date selected by the Board of Directors, which shall (a) not precede the date the Board of Directors declares the dividend payable and (b) not be more than 60 days prior to the date the dividend is paid. (viii) Holders will not have any right to receive dividends that may be declared on the Common Stock. The amount of right to receive dividends payable for any other period that is shorter or longer than a full semiannual dividend period declared on the Common Stock will be computed on the basis realized only after conversion of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on Holder’s shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of into shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendStock.

Dividends. (a) Holders Subject to clause 11(c) below, if the Company declares and pays any dividends on the Ordinary Shares, then, in that event, holders of shares of Series A Preferred Stock Preference Shares shall be entitled to cumulative share in such dividends on a pro rata basis, as if their Preference Shares had been converted into Ordinary Shares pursuant to clause 13 below immediately prior to the Series A Preferred Stock payable semiannuallyrecord date for determining the holders of Ordinary Shares eligible to receive such dividends. (b) If the Company does not consummate a Qualified IPO within 18 months after the Closing (“IPO Dividend Date”), which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out shall (subject to the Company’s compliance with the provisions of the assets Act and the Articles) declare and the holders of Preference Shares shall receive, in addition to the dividends described in clause 11 (a), dividends at an annual rate equal to 10% of the Company legally available thereforAccreted Value, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed calculated on the basis of a 360-day year year, consisting of twelve 30-day months. Commencing , which shall accrue on and following a daily basis from the Meeting End IPO Dividend Date, whether or not declared by the Board of Directors, and shall be payable quarterly in arrears on March 31, June 30, September 30 and December 31 of each year (unless any such day is not a Business Day, in which event such dividends shall be payable on the event that next succeeding Business Day, without accrual to the actual payment date) (each such date, a “Dividend Payment Date”). Unless otherwise specified in a resolution of directors, accrued and unpaid dividends are shall compound and be added to the Accreted Value in effect immediately prior to each Dividend Payment Date; provided, that, in lieu thereof, such accrued and unpaid dividends may (i) be paid on shares to the holders of Common Stock Preference Shares in cash or (ii) be paid in cash or compound and be added to the Accreted Value in any dividend period combination thereof, in each case as specified in a resolution of directors. (c) The Company shall not declare or pay any dividends on, or make any other distributions with respect to the Series A Preferred Stockor redeem, then a dividend shall be payable in respect of each share of Series A Preferred Stock purchase or otherwise acquire for such period in an amount equal to the greater of consideration, any Junior Securities unless and until (i) all accrued and unpaid dividends on the amount otherwise payable Preference Shares have been paid in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph full and (ii) prior to the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a IPO Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Dateaffirmative vote or written consent of the holders of a majority of the then outstanding Preference Shares, voting as a separate class, shall have been received; provided, however, that the foregoing limitation shall not apply to any: (i) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders redemption, purchase or other acquisition of record on the close Junior Securities in connection with any put or call post-termination rights in any employment contract, benefit plan or other similar arrangement with one or more employees, officers, directors or consultants of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other partyof its subsidiaries; (ii) exchange, dividends shall not accrue redemption, reclassification or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor conversion of any proposal made at a meeting class or series of stockholders Junior Securities for any class or series of Junior Securities; or (iii) purchase of fractional interests in any Junior Securities under the Company in order to effect the Stockholder Approval (conversion or whose transferor Holder was so obligated) if exchange provisions of such Holder (or such transferor Holder Junior Securities or the Affiliates security being converted or exchanged, or in connection with any combination or reclassification of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendJunior Securities.

Dividends. (a) Holders of shares Each Holder of Series A B Preferred Stock shall be entitled to cumulative receive, when, as and if declared by the Board of Directors, out of funds legally available therefor, cash dividends on the each share of Series A B Preferred Stock at a rate per annum equal to 13.5% of the Liquidation Preference of such share. All dividends shall be cumulative, whether or not earned or declared, and shall accrue on a daily basis from the date of issuance of Series B Preferred Stock, and shall be payable semiannuallyannually in arrears on each Dividend Payment Date, commencing on the first Dividend Payment Date after the date of issuance of such Series B Preferred Stock. Each dividend on Series B Preferred Stock shall be payable to the Holders of record of Series B Preferred Stock as they appear on the stock register of the Corporation on such record date as may be fixed by the Board of Directors, which record date shall not be less than ten nor more than 60 days prior to the applicable Dividend Payment Date. In the event of the repurchase of any shares of Series B Preferred Stock, dividends shall cease to accrue in respect of shares of Series B Preferred Stock on the date of their repurchase by the Corporation unless the Corporation shall have failed to pay the relevant repurchase price on the date fixed for repurchase. Notwithstanding anything to the contrary set forth above, unless and until such dividends are declared by the Board of Directors, there shall be no obligation to pay such dividends in cash; provided, that such dividends shall continue to cumulate and shall be paid at the time of repurchase, in the event of their repurchase, as provided herein if not earlier declared and paid. (b) All dividends paid with respect to shares of Series B Preferred Stock pursuant to paragraph B(3)(a) shall be paid pro rata to the Holders entitled thereto. (c) Dividends on account of arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders of record on any date as may be fixed by the Board of Directors, which date is not more than 30 days prior to the payment of such dividends. (d) No full dividends shall be declared by the Board of Directors or paid or funds set apart for the payment of dividends or other distributions on any Series B Parity Securities for any period, and no Series B Parity Securities may be repurchased, redeemed or otherwise retired, nor may funds be set apart for such payment, unless (i) full Accumulated Dividends have been paid or set apart for such payment on the Series B Preferred Stock and Series B Parity Securities for all Dividend Periods terminating on or prior to the date of payment of such full dividends or distributions on, or such repurchase or redemption of, such Series B Parity Securities (the "Series B Parity Payment Date") and (ii) an amount equal to a duly authorized committee thereof, out prorated dividend on the Series B Preferred Stock and Series B Parity Securities at the customary dividend rates for such securities for the period from the Dividend Payment Date immediately prior to the Series B Parity Payment Date to the Series B Parity Payment Date have been paid or set apart for payment. In the event that such dividends are not paid in full or set apart for payment with respect to all outstanding shares of Series B Preferred Stock and of any Series B Parity Securities and funds available for payment of dividends shall be insufficient to permit payment in full to the holders of all such stock of the assets full preferential amounts to which they are then entitled, then the entire amount available for payment of dividends shall be distributed ratably among all such holders of Series B Preferred Stock and of any Series B Parity Securities in proportion to the full amount to which they would otherwise be respectively entitled. (e) The Holders of Series B Preferred Stock shall be entitled to receive the dividends provided for in paragraph B(3)(a) hereof in preference to and in priority over any dividends upon any of the Company legally available thereforSeries B Junior Securities, so that if at any time full Accumulated Dividends on all shares of Series B Preferred Stock then outstanding have not been paid for all Dividend Periods then elapsed and shall be payable semiannually commencing a prorated dividend on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) Series B Preferred Stock at the rate per annum of 6% per share on aforesaid from the Liquidation Preference; provided that, in the event that on any Dividend Payment DateDate immediately preceding the Series B Junior Payment Date (as defined below) to the Series B Junior Payment Date have not been paid or set aside for payment, the Company is not permitted amount of such unpaid dividends shall be paid before any sum shall be set aside for or applied by the Corporation to declare the purchase, redemption or pay such other acquisition for value of any shares of Series B Junior Securities (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) other distribution shall not be declared by the Board of Directors, shall not be paid or payable declared and set apart for payment on any Series B Junior Securities (the date of any such Dividend actions to be referred to as the "Series B Junior Payment Date Date"); provided, however, that the foregoing shall not (i) prohibit the Corporation from repurchasing shares of Series B Junior Securities from a Holder who is, or was, a director or employee of the Corporation (or an affiliate of the Corporation) and no liability shall be incurred in respect thereof(ii) prohibit the Corporation from making dividends, and insteadother distributions, such Deferred Dividend shall be declaredredemptions, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability repurchases or acquisitions in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be Series B Junior Securities payable in addition to, Series B Junior Securities and not cash in lieu of, any dividend which would ordinarily be of fractional shares of such Series B Junior Securities. (f) Dividends payable on such succeeding Dividend Payment Date). The amount of dividends payable Series B Preferred Stock for any other period that is shorter or longer less than a full semiannual dividend period will one year shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on months and following the Meeting End Date, actual number of days elapsed in the event that period for which such dividends are payable. (g) The Corporation shall nor claim any deduction from gross income for dividends paid on shares of Common Series B Preferred Stock in any dividend period Federal Income tax return, claim for refund, or other statement, report or submission made to the Internal Revenue Service, and shall make any election or take any similar action to effectuate the foregoing except, in each case, if there shall be a change in law such that the Corporation may claim such dividends as deductions from gross income without affecting the ability of the Holders to claim the dividends received deduction under Section 243(a)(l) of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision). At the reasonable request of any Holder (and at the expense of such Holder), the Corporation shall join in the submission to the Internal Revenue Service of a request for a ruling that the dividends paid on Series B Preferred Stock shall be eligible for the dividends received deduction under Section 243(a)(l) of the Code (or any successor provision). In addition, the Corporation shall cooperate with any Holder (at the expense of such Holder) in any litigation, appeal or other proceeding relating to the eligibility for the dividends received deduction under Section 243(a)(1) of the Code (or any successor provision) of any dividends (within the meaning of Section 316(a) of the Code or any successor provision) paid on Series B Preferred Stock. To the extent possible, the principles of this paragraph B(3)(g) shall also apply with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph state and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendlocal income taxes.

Dividends. (a) Holders Subject to Section 11.8, beginning on July 1, 2027, holders of shares of issued and outstanding Series A D Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when, as and if approved by the Board of Directors or a duly authorized committee thereof, out of the assets funds of the Company Corporation legally available thereforfor the payment of distributions and declared by the Corporation, cumulative preferential dividends at a rate per annum equal to the Dividend Rate of the Liquidation Preference of the Series D Preferred Shares in effect on the first calendar day of the applicable Dividend Period. All Dividends on the Series D Preferred Shares shall be paid in cash or other property, shall accrue and accumulate (whether or not declared or paid) on each issued and outstanding share of the Series D Preferred Shares on a daily basis from July 1, 2027, and shall be payable semiannually commencing quarterly in equal amounts in arrears on the 180th last calendar day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) of each Dividend Period (each such date day being referred to herein as hereinafter called a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference); provided that, in the event that on if any Dividend Payment Date, the Company Date is not permitted to declare or pay such a Business Day, then the dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or that would otherwise have been payable on such Dividend Payment Date may be paid on the next succeeding Business Day with the same force and effect as if paid on such Dividend Payment Date, and no liability interest or additional dividends or other sums shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred accrue on the first succeeding amount so payable from such Dividend Payment Date to such next succeeding Business Day. Any dividend payable on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Series D Preferred Shares for any partial Dividend (and, for the avoidance of doubt, such Deferred Dividend Period shall be payable in addition to, prorated and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on as they appear in the stock records of the Corporation at the close of business on the applicable record date, which shall be the tenth day on which preceding the applicable Dividend Payment Date, or such other date designated by the Board of Directors or a an officer of the Corporation duly authorized committee thereof declares by the dividend payable Board of Directors for the payment of dividends that is not more than 30 nor less than ten days prior to such Dividend Payment Date (eacheach such date, a “Dividend Record Date”). Notwithstanding anything . (b) If the Corporation fails to pay any dividends on the Series D Preferred Shares in full for any three consecutive or non-consecutive Dividend Periods (such a failure, a “Dividend Default”), then: (i) commencing on the first day after the Dividend Payment Date on which a Dividend Default occurs and continuing until the date a Correction Event with respect to such Dividend Default occurs, the then-applicable Liquidation Preference per Series D Preferred Share shall increase by $0.50 per Series D Preferred Share; and (ii) following any Dividend Default that has been cured by the Corporation as provided above in subparagraph (i) of this Section 3(aparagraph (b), if the Corporation subsequently fails to pay dividends on the Series D Preferred Shares in full for any subsequent three consecutive or non-consecutive Dividend Periods, such subsequent failure shall constitute a separate Dividend Default, and the foregoing provisions of subparagraph (i) of this paragraph (b) shall immediately apply until such time as a Correction Event occurs with respect to such subsequent Dividend Default. (c) If, at any time, (x) the Series B Preferred Shares obtain a National Market Listing, and either (i) the Corporation fails to obtain a National Market Listing for the Series D Preferred Shares within 60 consecutive days following the Corporation having obtained a National Market Listing for the Series B Preferred Shares, or (ii) the Series D Preferred Shares are delisted from the National Market Listing for a period of 90 consecutive days or longer following the Corporation having obtained a National Market Listing for the Series B Preferred Shares, or (y) the Common Shares are delisted from the National Market Listing for a period of 90 consecutive days or longer (any of the foregoing such events, a “Delisting Event”), then: (i) commencing on the first day after the Delisting Event occurs and continuing until the date a Correction Event with respect to such Delisting Event occurs, (A) in the case of a Delisting Event with respect to the contrarySeries D Preferred Shares, the then-applicable Liquidation Preference per Series D Preferred Share shall increase by $0.50 per Series D Preferred Share and (B) in the case of a Delisting Event with respect to the Common Shares, the then-applicable Liquidation Preference per Series D Preferred Share shall increase by $1.00 per Series D Preferred Share; and (ii) following any Delisting Event that has been cured by the Corporation as provided above in subparagraph (i) of this paragraph (c), if (A) the Series D Preferred Shares subsequently cease to be subject to a National Market Listing for 90 consecutive days or longer or (B) the Common Shares subsequently cease to be subject to a National Market Listing for 90 consecutive days or longer, either of the foregoing such events shall constitute a separate Delisting Event with respect to the applicable shares, and without limiting the foregoing provisions of subparagraph (i) of this paragraph (c) shall immediately apply until such time as a Correction Event occurs with respect to such subsequent Delisting Event. (d) No distribution or dividend on the Series D Preferred Shares will be declared by the Corporation or paid or Set Apart for Payment by the Corporation at such time as the terms and provisions of Senior Shares or any agreement of the Corporation (whether now existing or arising hereafter), including any agreement relating to its indebtedness, prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting aside of funds is restricted or prohibited under the Official Code of Georgia Annotated or other remedy available applicable law; provided, however, notwithstanding anything to the Company contrary contained herein, dividends on the Series D Preferred Shares shall continue to accrue and accumulate pursuant to the terms hereof regardless of whether (i) any or all of the foregoing restrictions exist; (ii) the Corporation has earnings or profits; (iii) there are funds legally available for the payment of such dividends; or (iv) such dividends are authorized by the Board of Directors. Accrued and unpaid dividends on the Series D Preferred Shares will accumulate commencing as of the Dividend Payment Date on which they first become payable. (e) Except as provided in paragraph (f) of Section 11.3 and subject to paragraph (g) of Section 11.3, no distributions or dividends, in cash or otherwise, may be declared or paid or Set Apart for Payment upon the Common Shares or upon any Junior Shares or Parity Shares, nor shall any Common Shares or any Junior Shares or Parity Shares be redeemed, purchased or otherwise acquired directly or indirectly for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such stock) by the Corporation (except by conversion into or exchange for Junior Shares or by redemption, purchase or acquisition of stock required under any employee benefit plan of the Corporation), unless, on the most recently preceding Dividend Payment Date on which dividends on the Series D Preferred Shares became payable, the Corporation paid such dividends together with all accumulated and unpaid dividends to date on the Series D Preferred Shares in full in cash or other partyproperty. (f) When all dividends accumulated and unpaid to date are not paid in full in cash or other property (or a sum of cash or other property sufficient for such full payment is not so Set Apart for Payment) upon the Series D Preferred Shares, all dividends declared, paid or Set Apart for Payment upon the Series D Preferred Shares, shall not accrue be declared and paid in cash or other property, as applicable, or declared and a sum of cash or other property, as applicable, sufficient for the payment thereof shall be Set Apart for Payment thereof. No interest, or sum of money or other property in lieu of interest, shall be payable in respect of shares initially issued any Holder who is contractually obligated dividend payment on Series D Preferred Shares or on any dividend payment or other payment on any Junior Shares which may be in arrears. (g) So long as any Series D Preferred Shares remain outstanding, no cash or stock dividends shall be paid or made to appear and vote in favor any holders of Common Shares, Series A Preferred Shares or any proposal made at a meeting class or series of stockholders Junior Shares, without the consent of the Company in order majority of the votes entitled to effect be cast by the Stockholder Approval holders of the outstanding Series D Preferred Shares. (or whose transferor Holder was so obligatedh) if such Holder (or such transferor Holder or Any dividend payment made on the Affiliates of either) fails so to appear Series D Preferred Shares shall first be credited against the earliest accumulated accrued and vote in favor. Any shares issued unpaid dividend due with respect to such Holders shall bear shares which remains payable at the Stockholder Approval Legendtime of such payment.

Dividends. (a) Holders The holders of shares of the Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofDirectors, out of the assets funds of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) cumulative cash dividends at the rate per annum of 6% per share on described in Section 3(b). To the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be extent declared by the Board of Directors, dividends will be payable quarterly on the 15th day of the first month of each calendar quarter in San Francisco, California, or if not a Business Day in San Francisco, California, the next succeeding Business Day in San Francisco, California, and in the case of any accrued but unpaid dividends, at such additional times, if any, as determined by the Board of Directors (each a “Dividend Payment Date”); provided, however, that the first Dividend Payment Date for the Series A-1 Cumulative Redeemable Preferred Stock was January 16, 2017, in San Francisco, California, and the first Dividend Payment Date for the Series A-2 Cumulative Redeemable Preferred Stock will be January 15, 2018. A “Business Day” shall not mean any day, other than a Saturday or a Sunday, that is neither a legal holiday nor a day on which banking institutions in New York, New York, San Francisco, California or Tokyo, Japan are authorized or required by law, regulation or executive order to close. It is expected that the Board of Directors will declare any dividends by the end of the month prior to the month in which such dividends are to be paid or payable on paid. No less than five (5) Business Days before each Dividend Payment Date, the Company shall notify the holders of the Series A Preferred Stock of such Dividend Payment Date and no liability shall be incurred in respect thereof, the amount of the dividend payment for each of the Series A-1 Cumulative Redeemable Preferred Stock and instead, such Deferred Dividend shall be declared, become payable the Series A-2 Cumulative Redeemable Preferred Stock. Dividends on the Series A-1 Cumulative Redeemable Preferred Stock will accrue and be paid cumulative from and including the liability in respect thereof be incurred date of issuance of the Series A-1 Preferred Stock (the “Series A-1 Original Issue Date”) and Dividends on the first succeeding Dividend Payment Date on which Series A-2 Cumulative Redeemable Preferred Stock will accrue and be cumulative from and including the Company is not prohibited from declaring, paying and incurring date of issuance of the liability in respect of such Deferred Dividend Series A-2 Preferred Stock (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment “Series A-2 Original Issue Date”). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End term “Original Issue Date, in the event that dividends are paid on shares of Common Stock in any dividend period ” when used with respect to the Series A A-1 Cumulative Redeemable Preferred Stockstock shall mean the Series A-1 Original Issue Date, then a dividend and when used with respect to the Series A-2 Cumulative Redeemable Preferred Stock shall mean the Series A-2 Original Issue Date. However, the Board of Directors will not be payable in respect required to declare dividends, and the holders of each share of the Series A Preferred Stock for such period in an amount equal will not be entitled to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor require payment of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividend.

Dividends. (a) The Holders of shares a particular series of Series A Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofTrustees of the Trust, out of the assets of the Company funds legally available therefor, cumulative dividends each consisting of cash at the Applicable Rate and no more, payable on the respective dates set forth below. Dividends on the shares of each series of Preferred Shares so declared and payable shall be paid in preference to and in priority over any dividends declared and payable on the Common Shares. (i) Cash dividends on shares of each series of Preferred Shares shall accumulate from the Date of Original Issue and shall be payable semiannually payable, when, as and if declared by the Board of Trustees of the Trust, out of funds legally available therefor, commencing on the 180th Initial Dividend Payment Date. Following the Initial Dividend Payment Date for a series of Preferred Shares, dividends on that series of Preferred Shares will be payable, at the option of the Trust, either (i) with respect to any 7-Day Dividend Period and any Short Term Dividend Period of 35 or fewer days, on the day following next succeeding the Issue Date last day thereof, or (or ii) with respect to any Short Term Dividend Period of more than 35 days and with respect to any Long Term Dividend Period, monthly on the following first Business Day of each calendar month during such Short Term Dividend Period or Long Term Dividend Period and on the day next succeeding the last day thereof (each such date referred to in clause (i) or (ii) being herein referred to as a "Normal Dividend Payment Date"), except that if any such payment date Normal Dividend Payment Date is not a Business Day) (each , then the Dividend Payment Date shall be the first Business Day next succeeding such date being referred to herein as a “Normal Dividend Payment Date”) at the rate per annum of 6% per share . Although any particular Dividend Payment Date may not occur on the Liquidation Preference; provided thatoriginally scheduled date because of the exceptions discussed above, in the event that on any next succeeding Dividend Payment Date, subject to such exceptions, will occur on the Company next following originally scheduled date. If for any reason a Dividend Period for a series of Preferred Shares is not permitted scheduled to declare or pay such dividend or incur such liability either (x) begin on the same day and end on the same day as a matter Dividend Period for another series of law or (y) under Preferred Shares, then the terms last day of such Dividend Period for such other series of Preferred Shares shall be the second Business Day next succeeding such scheduled day unless the Trust obtains the opinion of tax counsel referred to in this paragraph. Subject to the limitation in the next sentence, if for any reason a Dividend Payment Date cannot be fixed as described above, then the Board of Trustees of the Trust shall fix the Dividend Payment Date. However, no Dividend Period of any loan agreementseries of Preferred Shares shall be co-extensive with any Dividend Period of any other series of Preferred Shares unless the Trust has received an opinion of tax counsel that having such co-extensive periods will not affect the deductibility, credit agreementfor federal income tax purposes, guarantyof dividends paid on the different series of Preferred Shares. The Board of Trustees of the Trust before authorizing a dividend may change a Dividend Payment Date if such change does not adversely affect the contract rights of the Holders of Preferred Shares set forth in the Declaration of Trust or the Bylaws. The Initial Dividend Period, or related agreement7-Day Dividend Periods and Special Dividend Periods with respect to a series of Preferred Shares are hereinafter sometimes referred to as "Dividend Periods." Each dividend payment date determined as provided above is hereinafter referred to as a "Dividend Payment Date." (ii) Each dividend shall be paid to the Holders as they appear in the Stock Register as of 12:00 noon, such dividend (a “Deferred Dividend”) shall not New York City time, on the Business Day preceding the Dividend Payment Date. Dividends in arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders as they appear on the Stock Register on a date, not exceeding 15 days prior to the payment date therefor, as may be fixed by the Board of DirectorsTrustees of the Trust. (i) During the period from and including the Date of Original Issue to but excluding the Initial Dividend Payment Date for a series of Preferred Shares (the "Initial Dividend Period"), the Applicable Rate for such series of Preferred Shares shall not be paid or payable the Initial Dividend Rate. Commencing on such the Initial Dividend Payment Date for a series of Preferred Shares, the Applicable Rate on that series for each subsequent dividend period (hereinafter referred to as a "Subsequent Dividend Period"), which Subsequent Dividend Period shall commence on and include a Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing end on and following include the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the calendar day immediately prior to the next Dividend Payment Date. Dividends payable on a Date (or last Dividend Payment Date in a Dividend Period if there is more than one Dividend Payment Date), shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) equal to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders rate per annum that results from implementation of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendAuction Procedures.

Dividends. (a) Holders of shares of Series A Preferred No dividends or other distributions declared after the Effective Time on AFC Common Stock shall be entitled paid with respect to cumulative dividends on any shares of AFC Common Stock represented by an APY Stock Certificate until such APY Stock Certificate is surrendered for exchange according to the Series A Preferred procedures described above. No fractional shares of AFC Common Stock payable semiannuallywill be issued pursuant to the Merger. In lieu of the issuance of any fractional shares of AFC Common Stock, which dividends shall cash will be declared paid to holders of such fractional share in the amount of the product of such fractional share multiplied by the Average Stock Price. THE RECAPITALIZATION APY is currently authorized to issue only one class of APY Common Stock. The Board of Directors or of APY has approved, and SMA, the holder of more than a duly authorized committee thereof, out majority of the assets outstanding APY Common Stock, has approved by written consent, an amendment to the APY Charter that would authorize the issuance of APY Class B Common Stock. Immediately prior to and as a condition precedent to the consummation of the Company legally available thereforMerger, APY will file such Amendment with the Secretary of State of Delaware and will exchange one share of the APY Class B Common Stock for each share of APY Common Stock held by SMA. Such shares of APY Class B Common Stock shall be payable semiannually commencing on remain outstanding after the 180th day following Merger. See "The Charter Amendment" and "Appendix A-2--Form of Charter Amendment." CERTAIN REPRESENTATIONS AND WARRANTIES The Merger Agreement contains customary representations and warranties by AFC, Merger Sub and APY as to, among other things, (i) due organization, valid existence and good standing; (ii) corporate authority to enter into the Issue Date Merger Agreement and related agreements; (or iii) authorized capital stock; (iv) ownership of subsidiaries; (v) the following Business Day if any such payment date is not a Business Daylack of conflict of the Merger Agreement and related agreements and transactions with charters, bylaws, law and certain agreements; (vi) consents, approvals and authorizations of governmental entities; (each such date being referred to herein as a “Dividend Payment Date”vii) at compliance with law and contract; (viii) the rate per annum filing of 6% per share on certain documents with the Liquidation PreferenceCommission; provided that, in (ix) the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either accuracy of financial statements; (x) as the absence of certain litigation; (xi) the absence of certain changes including those having a matter material adverse effect, the payment of law or dividends other than regular quarterly cash dividends and a change in accounting policy; (yxii) under the terms receipt of fairness opinions; and (xiii) the lack of any loan agreementcontract or agreement obligating the payment of finder's fees, credit agreementbrokerage or agent's commissions, guarantyother than agreements with Salomon Brothers and ▇▇▇▇▇▇▇ ▇▇▇▇▇. In addition, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period AFC represents that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) immediately following the amount otherwise payable in respect Effective Time, it will have available funds to satisfy the cash portion of such share of Series A Preferred Stock in accordance with the foregoing paragraph Merger Consideration; and (ii) to its knowledge, no event has occurred or condition exists in connection with the product Merger that would cause it to fail to satisfy any material applicable statute or written regulation. CERTAIN COVENANTS Conduct of (A) Business Pending the aggregate dividends payable per share of Common Stock in such dividend period times (B) Reorganization. Pursuant to the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibleMerger Agreement, AFC and APY have made various customary covenants relating to the Merger Transactions. For purposes of this Section 3(a)APY has agreed that, a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.47

Dividends. (a) Holders The holders of shares of the then outstanding Series A B Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when and as declared by the Board of Directors or a duly authorized committee thereof, Trustees out of the assets of the Company any funds legally available therefor, and shall be cumulative dividends at the rate of $22.8125 per share per year, payable semiannually commencing in equal amounts of $5.703125 per share quarterly in cash on the 180th day following the Issue Date (fifteenth day, or the following Business Day if any such payment date is not a Business Day) , the next succeeding Business Day, of January, April, July and October in each year, beginning January 15, 1996 (each such date day being referred hereinafter called a "Quarterly Dividend Date" and each period ending on a Quarterly Dividend Date being hereinafter called a "Dividend Period"), to herein as a “Dividend Payment Date”) shareholders of record at the rate per annum close of 6% per share business on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) date as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared fixed by the Board of DirectorsTrustees at the time of declaration of the dividend (the "Record Date"), shall not be paid or payable on such Dividend Payment Date and no liability which shall be incurred in respect thereof, and instead, such Deferred not less than 10 nor more than 30 days preceding the Quarterly Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends any dividend payable for the initial Dividend Period and for any other period that is Dividend Period shorter or longer than a full semiannual dividend period will Dividend Period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing Dividends on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A B Preferred Stock Shares shall accrue and be cumulative from and including the date of original issue thereof, whether or not (i) dividends on such shares are earned or declared or (ii) on any Quarterly Dividend Date there shall be funds legally available for such period the payment of dividends. Dividends paid on the Series B Preferred Shares in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a per share basis among all such shares at the time outstanding. The amount of any dividends accrued on any Series B Preferred Shares at any Quarterly Dividend Date shall be the amount of any unpaid dividends accumulated thereon, to and including such Quarterly Dividend Date, whether or not earned or declared, and the amount of dividends accrued on any shares of Series B Preferred Shares at any date other than a Quarterly Dividend Date shall be equal to the greater sum of (i) the amount otherwise payable in respect of such share any unpaid dividends accumulated thereon, to and including the last preceding Quarterly Dividend Date, whether or not earned or declared, plus an amount calculated on the basis of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product annual dividend rate of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is $22.8125 for the period commencing after such last preceding Quarterly Dividend Date to and including the date as of which the calculation is made based on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Datea 360-day year of twelve 30- day months. Except as provided in these Articles, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends Series B Preferred Shares shall not accrue be entitled to participate in the earnings or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders assets of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendTrust.

Dividends. (a) Beginning on the applicable Issue Date, the Holders of the outstanding shares of Series A Convertible Preferred Stock being issued on such Issue Date shall be entitled to cumulative receive, when, as, and if declared by the Special Committee, out of funds legally available therefor, cash dividends on each share of Convertible Preferred Stock, at the Series A rate (the "Dividend Rate") of 10 3/8% per annum multiplied by the then-effective liquidation preference per share of the SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION OF KEVCO, INC.-PAGE 6 204 Convertible Preferred Stock payable semiannuallyStock. Additional dividends, at the Dividend Rate, shall accrue in respect of, and compound on, any dividends which are in arrears. All dividends shall be declared by cumulative, whether or not earned or declared, from the Board of Directors or a duly authorized committee thereof, out of Issue Date and shall compound to the assets of extent not paid on the Company legally available therefornext succeeding Dividend Payment Date, and shall be payable semiannually quarterly in arrears on each Dividend Payment Date, commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “first Dividend Payment Date after the applicable Issue Date”) at . At the rate per annum option of 6% per share on the Liquidation Preference; provided thatcorporation as determined by the Special Committee, in the event that any dividend payable on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not Date may be declared and paid wholly or partially "in kind" in lieu of cash, by the Board issuing whole shares of Directors, shall not be paid or payable Series B Nonvoting Preferred Stock on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period an aggregate liquidation preference in an amount equal to the greater aggregate cash dividend cumulated and unpaid to such date (or any portion thereof) with cash paid in lieu of (i) the issuing fractional shares. The amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate any dividends payable per share of Common Stock on any Dividend Payment Date not declared or paid in such dividend period times (B) full in cash or by the number issuance of shares of Common Stock into which such share of Series A B Nonvoting Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior shall be added to the next Dividend Payment Dateliquidation preference of the Convertible Preferred Stock on such date. Dividends payable on a Dividend Payment Date Each dividend shall be payable to Holders of record as they appear on the close stock books of business the corporation on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date immediately preceding the related Dividend Payment Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Dividends. Authorize, declare or pay, directly or indirectly, any Dividends, except that the following shall be permitted: (a) Holders Dividends by any Company to the Borrower or any Guarantor; (b) payments to Holdings to permit Holdings to repurchase or redeem Qualified Capital Stock of shares Holdings held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of Series A Preferred Stock any Company, upon their death, disability, retirement, severance, resignation or termination of employment or service or pursuant to any employee or directors’ and/or officers’ equity or stock compensation plan; provided, that the aggregate cash consideration paid for all such redemptions and payments shall not exceed, in any fiscal year, $50,000,000 (and up to 50% of such $50,000,000 not used in any fiscal year may be carried forward to the next succeeding (but no other) fiscal year); (A) to the extent actually used by Holdings or Intermediate Holdco to pay such Taxes, costs and expenses, payments by the Borrower to or on behalf of Holdings or Intermediate Holdco in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings or Intermediate Holdco and (B) payments by the Borrower to or on behalf of Holdings or Intermediate Holdco in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings or Intermediate Holdco in an aggregate amount not to exceed $50,000,000 in any fiscal year; (d) Dividends, provided that both before and after giving effect to any such Dividend, (I) Pro Forma Liquidity shall be entitled greater than the Threshold Basket Amount, (II) no Default or Event of Default shall have occurred or shall result therefrom and (III) the Consolidated Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) is not less than the Minimum Fixed Charge Coverage Ratio and it being understood that such Dividend shall not be included in the calculation of Consolidated Fixed Charges for purposes of this clause (III); (e) Permitted Tax Distributions and Employee Payment Distributions; (f) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Capital Stock) of such person; (g) to cumulative dividends on the Series A Preferred Stock payable semiannuallyextent ultimately contributed to the Borrower, which dividends shall be declared the Net Cash Proceeds from the sale of Equity Interests (other than Disqualified Capital Stock) of Holdings and, to the extent ultimately contributed to the Borrower, Equity Interests of any of Holdings’ direct or indirect parent companies, in each case, to members of management, directors or consultants of Holdings, the Borrower or any of their Subsidiaries; (h) any amount paid to Sponsor pursuant to the terms of the Advisory Agreement, but only to the extent that no Event of Default or Trigger Event has occurred and is continuing; (i) the Transactions as contemplated by the Board of Directors Transaction Documents, including (i) a conveyance, transfer or a duly authorized committee thereof, out assignment of the assets North Yard and the West Yard to Sunoco or any nominee of Sunoco and (ii) the sale of the Company legally available thereforNorth Yard Assets and the Other Logistics Assets to any third party; (j) Dividends permitted under Section 6.02(g); (k) upon consummation of an IPO, (i) the net proceeds received by the Borrower from the sale of securities in such IPO and shall be payable semiannually commencing (ii) dividends from Available Cash on the 180th day and following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; consummation, provided that, in the event that on case of this clause (ii), after giving effect to any Dividend Payment Datesuch dividend, Liquidity shall equal or exceed the Company is not permitted to declare or pay such dividend or incur such liability either greater of (x) as a matter an amount equal to 15% of law or the then current Borrowing Base and (y) under $10,000,000; (l) Dividends taking the terms form of any loan agreementissuance of Qualified Capital Stock in the Borrower; (m) prior to, credit agreementbut in contemplation of an IPO, guaranty, or related agreement, Dividends equal to existing cash and accounts receivable of Borrower (which upon consummation of the IPO (and in no event later than three (3) Business Days after the making of such dividend (a “Deferred Dividend”) shall not be declared by the Board of DirectorsDividends), shall not be paid or payable on such Dividend Payment Date and no liability replaced with an equal amount of IPO proceeds (which portion of the IPO proceeds shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (andnot, for the avoidance of doubt, such Deferred Dividend be distributed pursuant to clause (k)(i) above); and (n) a distribution of the Equity Interests of PESA to an Affiliate Transferee, so long as PESA does not own any material portion of the Refinery, provided that, notwithstanding anything to the contrary herein, Dividends permitted pursuant to any of the foregoing clauses shall not be payable included in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The the calculation of total amount of dividends payable for Dividends consummated pursuant to any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendclauses.

Dividends. (a) Holders of a. The Preferred Stock, which hereby is designated as New Preferred Stock, is to be issued pursuant to the Merger for issued and outstanding shares of Series A new preferred stock, $.01 par value, of the Missouri Predecessor Corporation (the "Predecessor Corporation New Preferred Stock"), at the effective time of the Merger, whereby each share of Predecessor Corporation New Preferred Stock issued and outstanding at the time of the Merger is to be converted into one share of New Preferred Stock of this Corporation. For all purposes of this Certificate of Designation, each share of New Preferred Stock of this Corporation issued in connection with the Merger shall be deemed to have been issued as of the date of issuance of the share of Predecessor Corporation New Preferred Stock for which it was converted in the Merger, and all dividends paid or accrued by the Predecessor Corporation in respect of each share of Predecessor Corporation New Preferred Stock shall be deemed to have been paid or accrued in respect of the share of New Preferred Stock for which it was converted. By way of further clarification, the rights of each share of New Preferred Stock, with respect to dividends (including the accumulation thereof) and liquidation preference, shall be the same as the Predecessor Corporation New Preferred Stock for which the New Preferred Stock was converted in the Merger. b. The holders of the shares of New Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when and as declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company funds legally available therefortherefore, cumulative dividends at the annual rate of 9.25% per annum (the "NP Dividend Rate") which shall accrue daily and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-365 day year consisting or a 366 day year, as applicable, on the NP Base Amount (which, except as provided in paragraph 2(e) below, shall initially be and shall never be less than $1,000 per share, the "NP Base Amount") and no more (except as specifically provided below), in annual payments on each July 1 (each of twelve 30-day months. Commencing on and such dates being a "NP Dividend Payment Date"), commencing with the first NP Dividend Payment Date following the Meeting End date of issuance (the "Issuance Date, in the event that dividends are paid on ") of shares of Common Stock in any dividend period with respect to the Series A New Preferred Stock, payable as set forth hereinafter. If the NP Dividend Payment Date is not a Business Day (as defined herein), then a such dividend shall be payable in on the next succeeding Business Day. The dividend payable on the first NP Dividend Payment Date following an Issuance Date with respect of each to any issued and outstanding share of Series A New Preferred Stock for such period in an shall be the pro rata amount equal to of the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) NP Dividend Rate based upon the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend days in the period with respect from an Issuance Date to a the first NP Dividend Payment Date is following such Issuance Date (the period commencing "Dividend Period"). Dividends on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior New Preferred Stock shall be paid to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on at the close of business on the day on which date specified by the Board of Directors or a duly authorized committee thereof declares of the Corporation at the time such dividend payable (eachis declared; provided, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) that such date shall not be more than 60 days nor less than 10 days prior to the contraryrespective NP Dividend Payment Date. Dividends shall be fully cumulative and shall accrue (whether or not declared and whether or not funds are legally available for the payment of dividends) from the first day of the Dividend Period as to which such dividend may be payable as herein provided. Accrued dividends which are not paid on an NP Dividend Payment Date shall be added to the NP Base Amount on that NP Dividend Payment Date. The NP Base Amount shall be reduced (but not below $1,000 per share) by the amount of cumulated dividends when such accumulated dividends shall have been paid. Business Day shall mean each day which is neither a Saturday, Sunday nor another day on which banking institutions in New York, New York or St. Louis, Missouri are legally authorized or required to close. c. Dividends on the New Preferred Stock shall be payable solely in cash. d. All dividends paid with respect to shares of New Preferred Stock pursuant to paragraphs (2)(a), 2(b) and (2)(c) shall be paid pro rata and in like manner to all holders entitled thereto. e. Unless full, cumulated dividends have been or contemporaneously are declared and paid on the New Preferred Stock through the most recent NP Dividend Payment Date, the Corporation shall not declare or pay on any shares of the Corporation's Common Stock any dividend, whether in cash, property or otherwise (other than solely in additional Common Stock), nor shall the Corporation make any distribution on any Common Stock or any warrants, rights or options exercisable for any Common Stock or set aside any assets for such purpose (other than solely in additional Common Stock), nor shall the Corporation purchase, redeem or otherwise acquire any Common Stock or any warrants, rights or options exercisable for any Common Stock (other than in exchange for additional Common Stock). f. Subject to the foregoing provisions of this paragraph 2, the Board of Directors may declare and the Corporation may pay or set apart for payment dividends and other distributions on any Common Stock or any warrants, rights or options exercisable for any Common Stock, and without limiting may purchase, redeem or otherwise acquire any other remedy available to the Company Common Stock or any other partywarrants, dividends rights or options exercisable for any Common Stock and set aside assets for such purpose, and the holders of the shares of the New Preferred Stock shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated entitled to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendshare therein.

Dividends. (a) The Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on receive with respect to each share of Preferred Stock, at the Series A Preferred Stock payable semiannuallyCompany’s option, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, either (i) out of any funds or assets legally available for that purpose, cumulative dividends, whether or not declared or paid, payable in cash (a “Cash Dividend”) at the assets annual rate of 6.5% of the Company legally available therefor, and shall be payable semiannually commencing on Accreted Value per share in effect immediately after the 180th day following the Issue prior Dividend Payment Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Issue Date in respect of the first Dividend Payment Date) (the “Cash Dividend Rate”) or (ii) an increase in the Accreted Value per share (a “PIK Dividend”) at an annual rate of 8.0% (compounded quarterly) of the rate per annum Accreted Value in effect immediately after the prior Dividend Payment Date (or the Issue Date in respect of 6% per share on the Liquidation Preference; provided that, in the event that on any first Dividend Payment Date) (the “Accretion Rate”), the Company is not permitted to declare or pay such dividend or incur such liability either in each case of clause (xi) as a matter of law or and (y) under the terms of any loan agreementii), credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable based on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing Such Cash Dividends shall only be payable when, as and if declared by the Board of Directors. To the extent that the Board of Directors so declares, such Cash Dividends shall be payable in arrears on and following each Dividend Payment Date for the Meeting End quarterly period ending on the Dividend Record Date immediately prior to such Dividend Payment Date, in to the Holders of record of Preferred Stock at the close of business on such Dividend Record Date. If a Dividend Payment Date is not a Business Day, then the Cash Dividend shall be due and payable on the first Business Day following such Dividend Payment Date. In the event that the Company does not declare and pay a Cash Dividend at the Cash Dividend Rate on any Dividend Payment Date pursuant to this Section 3(a), then upon such Dividend Payment Date on which such Cash Dividend is not paid, the Accreted Value in effect immediately after the prior Dividend Payment Date (or the Issue Date in respect of the first Dividend Payment Date) shall be increased automatically at the Accretion Rate. If the amount of accrued and unpaid dividends are is to be determined as of any date other than a Dividend Payment Date (for example, if determined on a Conversion Date, a Mandatory Conversion Date or a Redemption Date and such date is not a Dividend Payment Date), dividends shall accrue at the Accretion Rate daily (compounding quarterly on each Dividend Payment Date), whether or not earned or declared, from and after the Issue Date or the most recent Dividend Payment Date, as applicable; provided, that if the Company pays Cash Dividends in respect of any Dividend Payment Date, dividends shall accrue at the Cash Dividend Rate for the immediately following quarterly period. (b) No dividends or other distributions (other than a dividend or distribution payable solely in shares of Junior Stock (in the case of Junior Stock) and other than cash paid in lieu of fractional shares) may be declared, made or paid, or set apart for payment upon, any Parity Stock or Junior Stock, nor may any Parity Stock or Junior Stock be redeemed, purchased or otherwise acquired for any consideration (or any money paid to or made available for a sinking fund for the redemption of any Parity Stock or Junior Stock) by or on behalf of the Company (except by conversion into or exchange for shares of Parity Stock (if such issuance of Parity Stock has been approved in accordance with Section 4(b)) (in the case of Parity Stock) or Junior Stock (in the case of Parity Stock or Junior Stock); provided that this restriction shall not apply to (i) the repurchase of Equity Securities from directors, employees, or consultants of the Company or any of its subsidiaries pursuant to agreements under which the Company has the obligation to repurchase such shares upon the occurrence of certain events, such as the termination of service to the Company or a subsidiary, in an aggregate amount not to exceed $5.0 million, (ii) regular cash dividends, and mandatory repurchases, redemptions or liquidation payments required by the terms of the certificate of designations for the Series A Preferred Stock (including any Delayed Dividends (as defined by the terms of the certificate of designations for the Series A Preferred Stock)), except that the Company may pay cash to effect any such repurchase or redemption, only so long as the Company has concurrently offered to repurchase the Preferred Stock on the terms set forth in Section 8(b) hereof); (iii) dividends, distributions, redemptions, purchases or other acquisitions for which the Company has obtained consent of the Holders pursuant to Section 4(b)(iii) or (iv) any repurchases, redemptions or other acquisitions of Common Stock made in lieu of withholding taxes in connection with any exercise of employee stock options to acquire Common Stock. (c) No dividends or other distributions on the Preferred Stock (other than a dividend period with respect or distribution payable solely in shares of Preferred Stock, including PIK Dividends) may be declared, made or paid, or set apart for payment upon, any Preferred Stock, nor may any Preferred Stock be redeemed, purchased or otherwise acquired for any consideration (or any money paid to or made available for a sinking fund for the redemption of any Preferred Stock) by or on behalf of the Company (except by conversion into or exchange for shares of Preferred Stock or Parity Stock or Junior Stock), unless all accumulated and unpaid dividends shall have been or contemporaneously are declared and paid, or are declared and a sum of cash sufficient for the payment thereof is set apart for such payment, on the Series A Preferred Stock, then a the Preferred Stock and any Parity Stock for all dividend shall payment periods terminating on or prior to the date of such declaration, payment, redemption, purchase or acquisition. Notwithstanding the foregoing, if full dividends have not been paid on the Series A Preferred Stock, the Preferred Stock and any Parity Stock, dividends may be payable declared and paid on the Series A Preferred Stock, the Preferred Stock and such Parity Stock so long as the dividends are declared and paid pro rata so that the amounts of dividends declared per share on the Series A Preferred Stock, the Preferred Stock and such Parity Stock will in respect of all cases bear to each other the same ratio that accumulated and unpaid dividends per share on the shares of Series A Preferred Stock for such period in an amount equal to Stock, the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance and such other Parity Stock bear to each other. (d) Each Holder shall be entitled to any dividend or other distribution paid or made with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per respect to any share of Common Stock in to the same extent as if such dividend period times (B) the number of Holder had converted its Preferred Stock and held such shares of Common Stock into which on the record date for such share dividend or other distribution. Payments or other distributions under the preceding sentence shall be paid or made to Holders concurrently with the related dividend or other distribution to holders of Series A Preferred Stock is then convertibleCommon Stock. For purposes of Except as provided in this Section 3(d) and Section 3(a), a dividend period with respect Holders shall not be entitled to a Dividend Payment Date is the period commencing any dividends or other distributions on the preceding Dividend Payment Date Preferred Stock, whether payable in cash, property or stock. (or, if there is no preceding Dividend Payment Date, the Issue Datee) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) Certificate of Designation to the contrary, upon the occurrence and without limiting during the continuance of any other remedy available to Trigger Event, the Company or any other partyDividend Rate, dividends shall not accrue or be whether payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (cash or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders by PIK Dividend, shall bear the Stockholder Approval Legendincrease by 3.0% per annum.

Dividends. (a) Holders From and after the date of shares of Series A Preferred Stock shall be entitled this Agreement and prior to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment DateClosing, the Company is shall not permitted to declare or pay such make any dividend or incur such liability either (x) as a matter distribution to its shareholders, and Company OP shall not make any distribution to its partners, in each case without the prior written consent of law or (y) under Parent in its sole discretion; provided, however, that the terms prior written consent of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) Parent shall not be declared required for the authorization and payment of (i) regular quarterly distributions not to exceed $0.24 per Company Common Share per quarter to the holders thereof for the quarter ending September 30, 2006 and for each quarter thereafter ending prior to the Effective Times (with regular declaration and payment dates); (ii) a special dividend required by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which Code for the Company is not prohibited from declaringto maintain its qualification as a REIT or necessary to eliminate any federal Tax liability, paying and incurring the liability in respect of such Deferred Dividend after giving effect to any payments made or to be made pursuant to clause (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Datei). The amount of dividends payable for any other period that is shorter or longer than ; (iii) a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, distribution per Company OP Unit in the event that same amount as a dividend per Company Common Share permitted pursuant to clauses (i) and (ii) above, with the same record and payment dates as such dividends are paid on shares Company Common Shares, (iv) a quarterly distribution of Common Stock $0.46875 per Company Preferred Share on record and payment dates set forth in any dividend period the Declaration prior to the Effective Times (with regular declaration and payment dates); (v) distributions from Company OP to the Company sufficient to permit the Company to make the distributions with respect to the Series A Company Preferred Stock, then Shares described in clause (iv) above. (b) Each of Parent and the Company shall declare a dividend to their respective shareholders, the record date for which shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the last Business Day prior to the Merger Effective Time. The per share dividend amount payable by each party shall be an amount equal to such party’s most recent quarterly dividend rate, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contraryMerger Effective Time occurs, and without limiting any other remedy available divided by the actual number of days in the calendar quarter in which such dividend is declared. (c) In the event that a distribution with respect to the Company or any other party, dividends shall Common Shares and the Company Preferred Shares permitted by this Section 6.9 (including pursuant to Section 6.9(b) above) has (i) a record date prior to the Effective Times and (ii) has not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders been paid as of the Effective Times, the holders of Company in order Common Shares and Company Preferred Shares shall be entitled to effect receive such distribution from the Stockholder Approval (or whose transferor Holder was so obligated) if Company at the time such Holder (or such transferor Holder or the Affiliates shares are exchanged pursuant to Article II of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendthis Agreement.

Dividends. (a) Holders Each of shares of Series A Preferred Stock Parent and the Company shall declare a dividend to their respective stockholders, the record and payment date for which shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the last Business Day prior to the Effective Time, in each case, subject to funds being legally available therefor. The per share dividend amount payable by the Company shall be an amount equal to (i) the Company’s most recent monthly dividend, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Board Effective Time occurs, and divided by the actual number of Directors or a duly authorized committee thereof declares days in the calendar month in which such dividend is declared, plus (ii) if necessary to enable the Company to make aggregate dividend distributions during its final taxable period equal to the Minimum Distribution Dividend, an additional amount (the “Company Additional Dividend Amount”) necessary so that the aggregate dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) is equal to the contraryMinimum Distribution Dividend, plus (iii) the Parent Additional Dividend Amount, if any, divided by the quotient of (A) one (1) divided by (B) the Exchange Ratio. The per share dividend amount payable by Parent shall be an amount equal to (i) Parent’s most recent monthly dividend, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Effective Time occurs, and without limiting any other remedy available divided by the actual number of days in the calendar month in which such dividend is declared, plus (ii) the Company Additional Dividend Amount, if any, divided by the Exchange Ratio, plus (iii) if necessary to enable Parent to make aggregate dividend distributions during the taxable year that includes the Closing Date equal to the Minimum Distribution Dividend, an additional amount (the “Parent Additional Dividend Amount”) necessary so that the aggregate dividend payable is equal to the Minimum Distribution Dividend. If the Company determines it is necessary to declare the Additional Dividend Amount, the Company shall notify Parent of such determination at least ten (10) days prior to the Company or any other partyStockholder Meeting. If Parent determines it is necessary to declare the Parent Additional Dividend Amount, dividends the Parent shall notify the Company of such determination at least ten (10) days prior to the Company Stockholder Meeting. In the event that a distribution with respect to shares of Company Common Stock permitted under the terms of this Agreement has (i) a record date prior to the Effective Time and (ii) has not accrue or be payable in respect been paid as of the Effective Time, the holders of shares initially issued any Holder who is contractually obligated of Company Common Stock shall be entitled to appear and vote in favor of any proposal made at a meeting of stockholders of receive such distribution from the Company in order at the time such shares are exchanged pursuant to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates Article III of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.this Agreement

Dividends. (a) Holders The holders of shares of Series A outstanding Redeemable Convertible Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyentitled, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofwhen, out of the assets of the Company legally available therefor, as and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and out of funds lawfully available therefor to receive cumulative dividends at the liability in respect thereof be incurred rate per annum of 15% per share on the first succeeding Liquidation Preference (equivalent to $15.00 per annum per share), subject to adjustment as provided herein, payable quarterly in arrears (the “DIVIDEND RATE”). The Dividend Payment Date Rate shall decrease to a rate per annum of 12% per share on which the Company is not prohibited from declaring, paying Liquidation Preference (equivalent to $12 per annum per share) if the Closing Price of the Common Stock equals or exceeds 150% of the then-effective Conversion Price for at least 180 consecutive Trading Days. Dividends payable for each full Dividend Period will be computed by dividing the Dividend Rate by four and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable arrears on each Dividend Payment Date for the Dividend Period ending immediately prior to such succeeding Dividend Payment Date), to the holders of record of Redeemable Convertible Preferred Stock at the close of business on the Record Date applicable to such Dividend Payment Date. The amount Such dividends shall be cumulative from the most recent date as to which dividends shall have been paid or, if no dividends have been paid, from the Issue Date (whether or not in any Dividend Period or Dividend Periods there shall be funds of dividends the Company legally available for the payment of such dividends) and shall accrue on a day-to-day basis, whether or not earned or declared, from and after the Issue Date. Dividends payable for any other period that is shorter partial Dividend Period or longer than a full semiannual dividend period will for the initial Dividend Period ending on the day immediately prior to [ ] [Note: the first Dividend Payment Date after the Swap Closing to be inserted], shall be computed on the basis of days elapsed over a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that Accumulations of dividends are paid on shares of Common Redeemable Convertible Preferred Stock in shall not bear interest. The initial dividend rate on the Redeemable Convertible Preferred Stock for the initial Dividend Period, commencing on the Issue Date (assuming an Issue Date of [ ] [Note: the date of the Swap Closing to be inserted] and a then-applicable Dividend Rate of 15% per annum), will be $15 per share, subject to adjustment as provided for herein, and will be payable, when, as and if declared by the Board of Directors, on [ ] [Note: the first Dividend Payment Date after the Swap Closing to be inserted] out of funds lawfully available therefor. Each subsequent quarterly dividend on the Redeemable Convertible Preferred Stock, when, as and if declared by the Board of Directors, will be $3.75 per share, subject to adjustment as provided for herein. (b) No dividend will be declared or paid upon, or any dividend period sum set apart for the payment of dividends upon, any outstanding share of the Redeemable Convertible Preferred Stock with respect to any Dividend Period unless all dividends for all preceding Dividend Periods have been declared and paid, or declared and a sufficient sum of cash and/or number of shares of Redeemable Convertible Preferred Stock or Common Stock, if permitted under Section 3A, has been set apart for the Series A payment of such dividend upon all outstanding shares of Redeemable Convertible Preferred Stock. (c) Holders of shares of Redeemable Convertible Preferred Stock shall not be entitled to any dividends on the Redeemable Convertible Preferred Stock, then a dividend whether payable in cash, property or stock, in excess of full cumulative dividends. No interest, or sum of money in lieu of interest, shall be payable in respect of each share of Series A any dividend payment or payments on the Redeemable Convertible Preferred Stock for such period which may be in an amount equal to the greater of arrears. (d) If (i) within 45 days after a demand to file the amount otherwise payable in respect of such share of Series A Preferred Stock Shelf Registration Statement has been made in accordance with the foregoing paragraph and Investor Rights Agreement, the Shelf Registration Statement has not been filed with the Commission, (ii) within 135 days after a demand to file the product Shelf Registration Statement has been made in accordance with the Investor Rights Agreement, the Shelf Registration Statement has not been declared effective by the Commission or (iii) after the Shelf Registration Statement has been declared effective by the Commission, (A) the Shelf Registration Statement thereafter ceases to be effective or (B) the Shelf Registration Statement or the related prospectus ceases to be usable in connection with resales of Transfer Restricted Securities during the period that any Transfer Restricted Securities (other than Transfer Restricted Securities held or beneficially owned by Affiliates of the Company, other than the Initial Holder) remain outstanding (each such event referred to in clauses (i), (ii) and (iii), a “REGISTRATION DEFAULT”), additional dividends shall accrue on the Redeemable Convertible Preferred Stock at the rate of 1.00% (100 basis points) per annum above the Dividend Rate for the first 30 days of such Registration Default, increasing to a rate of 1.50% (150 basis points) per annum thereafter, until all Registration Defaults have been cured from, and including, the date on which any such Registration Default shall occur to, but excluding, the date on which all Registration Defaults have been cured, subject to the exceptions set forth in Section 3(e). At all other times, dividends shall accumulate on the Redeemable Convertible Preferred Stock only at the Dividend Rate. (e) Additional dividends shall not accrue on the Redeemable Convertible Preferred Stock as a result of any Registration Default referred to in clause (iii) of Section 3(d) if (i) such Registration Default has occurred solely as a result of (A) the aggregate dividends payable per share filing of Common Stock in a post-effective amendment to the Shelf Registration Statement to incorporate annual audited financial information with respect to the Company where such dividend period times post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus, (B) the number filing of a post-effective amendment to the Shelf Registration Statement to cover new Holders or beneficial owners of the Redeemable Convertible Preferred Stock or additional shares of Common Stock into which such share of Series A the Redeemable Convertible Preferred Stock is then convertible. For purposes acquired by any existing Holder or beneficial owner of this Section 3(a), a dividend period the Redeemable Convertible Preferred Stock or (C) other material events with respect to a Dividend Payment Date the Company that would need to be described in the Shelf Registration Statement or the related prospectus and (ii) in the case of clause (i)(C), the Company is proceeding promptly and in good faith to amend or supplement such Shelf Registration Statement and related prospectus to describe such events; provided, however, that in the period commencing on the preceding Dividend Payment Date case of clauses (ori)(A) or (C), if there is no preceding Dividend Payment Datesuch Registration Default referred to in clause (iii) of Section 3(d) occurs for a continuous period in excess of 30 days, additional dividends as described in Section 3(d) shall accrue in accordance therewith from, and including, the Issue Date) and ending on date such Registration Default occurs until, but excluding, the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who date such Registration Default is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendcured.

Dividends. (a) The Holders as of shares of Series A Preferred Stock 12:00 noon, New York City time, on the applicable Dividend Payment Date, shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofTrustees, out of the assets of the Company funds legally available therefor, cumulative dividends, at the Applicable Dividend Rate. Dividends on the shares of RP so declared and payable shall be paid (i) in preference to and in priority over any dividends declared and payable on the Common Shares, and (ii) to the extent permitted under the Code and to the extent available and in preference to and priority over any dividends declared and payable on the Common Shares, out of tax-exempt income earned on the Trust's investments, subject to the application of the alternative minimum tax provisions of the Code. Dividends on shares of RP will be designated as exempt-interest dividends up to the amount of net tax-exempt income of the Trust for purposes of Section 852 of the Code. (b) Dividends on each share of RP shall accumulate from its Date of Original Issue and will be payable, when, as and if declared by the Board of Trustees, on each Dividend Payment Date applicable to such share of RP. (c) Each declared dividend shall be payable semiannually commencing on the 180th day following applicable Dividend Payment Date to the Issue Holder or Holders of such shares of RP as set forth in paragraph 3(a). Dividends on any share of RP in arrears with respect to any past Dividend Payment Date (or the following Business Day if may be declared and paid at any such payment date is not a Business Day) (each such date being referred time, without reference to herein as a “any regular Dividend Payment Date”, to the Holder of such share as of a date not exceeding five Business Days preceding the date of payment thereof as may be fixed by the Board of Trustees. Any dividend payment made on any share of RP shall be first credited against the dividends accumulated but unpaid (whether or not earned or declared) at with respect to the earliest Dividend Payment Date on which dividends were not paid. (d) Neither Holders nor Beneficial Owners of shares of RP shall be entitled to any dividends on the shares of RP, whether payable in cash, property or stock, in excess of full cumulative dividends thereon, except as set forth in paragraph 3(k) of this Part I. Except as provided in paragraph 3(h) of this Part I, neither Holders nor Beneficial Owners of shares of RP shall be entitled to any interest, or other additional amount, on any dividend payment on any share of RP which may be in arrears. (e) Except as otherwise provided herein, the Applicable Dividend Rate on each share of RP for each Dividend Period with respect to such share shall be equal to the rate per annum that results from implementation of 6% per the remarketing procedures described in Part II hereof. (f) The amount of declared dividends for each share of RP payable on each Dividend Payment Date shall be computed by the Trust by multiplying the Applicable Dividend Rate in effect with respect to dividends payable on such share on such Dividend Payment Date by a fraction the Liquidation Preference; provided thatnumerator of which shall be the number of days such share was outstanding from and including its Date of Original Issue or the preceding Dividend Payment Date, in as the event that case may be, to and including the last day of such Dividend Period, and the denominator of which shall be 365, and then multiplying the percentage so obtained by $100,000. (g) No later than by 12:00 noon, New York City time, on any each Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under Trust shall deposit in same- day funds with the terms Paying Agent the full amount of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or and payable on such Dividend Payment Date and no liability on any share of RP. (h) The Applicable Dividend Rate for each Dividend Period commencing during a Non-Payment Period shall be incurred equal to the Non-Payment Period Rate; any share of RP for which a Special Dividend Period would otherwise have commenced on the first day of a Non-Payment Period shall have a 28-day Dividend Period (in respect thereofthe case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP); and each Dividend Period for shares of RP commencing after the first day of, and insteadduring, a Non-Payment Period shall be a 28-day Dividend Period (in the case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP). Any amount of any dividend due on any Dividend Payment Date for any shares of RP (if, prior to 12:00 noon, New York City time, on such Dividend Payment Date, the Trust has declared such dividend payable on or within three Business Days after such Dividend Payment Date to the Holders of such shares of RP as of 12:00 noon, New York City time, on the Business Day preceding such Dividend Payment Date) or redemption price with respect to any shares of RP not paid to such Holders when due but paid to such Holders in the same form of funds by 12:00 noon, New York City time, on any of the first three Business Days after such Dividend Payment Date or due date, as the case may be, shall incur a late charge to be paid therewith to such Holders and calculated for such period of non-payment at the Non-Payment Period Rate applied to the amount of such non-payment based on the actual number of days comprising such period divided by 365. For the purposes of the foregoing and paragraphs 3(g) and -4(g) of this Part I, payment to a person in same-day funds on any Business Day at any time shall be considered equivalent to payment to such person in New York Clearing House (next-day) funds at the same time on the preceding Business Day, and any payment made after 12:00 noon, New York City time, on any Business Day shall be considered to have been made instead in the same form of funds and to the same person before 12:00 noon, New York City time, on the next Business Day. (i) Except during a Non-Payment Period, by 1:00 p.m. on the Tender Date in the Remarketing at the end of the Initial Dividend Period applicable to a share of RP, and by 1:00 p.m. on the Tender Date in the Remarketing at the end of each subsequent Dividend Period applicable to a share of RP, the Beneficial Owner of such share of RP may elect to tender such share or hold such share for the next Dividend Period. If the Beneficial Owner of such share of RP elects to hold such share, such Deferred Beneficial Owner shall hold such share of RP for a 28-day Dividend Period (in the case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP) or a Special Dividend Period if the succeeding Dividend Period with respect to such share has been designated by the Board of Trustees as a Special Dividend Period provided that, if (i) there are no Remarketing Agents, (ii) the Remarketing Agents are not required to conduct a Remarketing or (iii) the Remarketing Agents are unable to remarket in the Remarketing on the Dividend Reset Date following such Tender Date all shares of RP tendered (or deemed tendered) to them at a price of $100,000 per share, then the next Dividend Period for all shares of RP shall be declared, become payable a 28-day Dividend Period (in the case of Series A and be paid B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP) and the liability Applicable Dividend Rate therefor shall be the applicable Maximum Dividend Rate. If the Beneficial Owner of such share of RP fails to elect to tender or hold such share by 1:00 p.m. on such Tender Date, such Beneficial Owner shall continue to hold such share at the Applicable Dividend Rate determined in such Remarketing for a Dividend Period of the same type as the current Dividend Period for such share; provided that, (i) if there are no Remarketing Agents, the Remarketing Agents are not required to conduct a Remarketing or the Remarketing Agents are unable to remarket in the Remarketing on the Dividend Reset Date following such Tender Date all shares of RP tendered (or deemed tendered) to them at a price of $100,000 per share, then the next Dividend Period for all shares of RP shall be a 28-day Dividend Period (in the case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP) and the Applicable Dividend Rate therefor shall be the Maximum Applicable Rate for a 28-day Dividend Period or a 7-day Dividend Period, as the case may be and (ii) if such current Dividend Period is a Special Dividend Period or the succeeding Dividend Period has been designated by the Board of Trustees as a Special Dividend Period, then such Beneficial Owner is deemed to have elected to tender the shares. If the Remarketing Agents are unable to remarket in such Remarketing all shares of RP subject to such Remarketing and tendered (or deemed tendered) to them at a price of $100,000 per share, the Beneficial Owners thereof shall hold such share at the applicable Maximum Dividend Rate for 28-day Dividend Period (in the case of 7 Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP). If a share of RP is tendered (or deemed tendered) and purchased in a Remarketing, the next Dividend Period for such share shall be a 28-day Dividend Period (in the case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series c shares of RP) or a Special Dividend Period with respect to such share, as the case may be, at the Applicable Dividend Rate therefor, except that, if the Remarketing Agents are unable to remarket in such Remarketing all shares of RP tendered (or deemed tendered) to them at a price of $100,000 per share, no purchaser in such Remarketing shall be permitted to acquire shares having a Special Dividend Period and the next Dividend Period for such share shall be a 28-day Dividend Period (in the case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP) and the Applicable Dividend Rate therefor shall be the applicable Maximum Dividend Rate. (j) The Board of Trustees may at any time designate a subsequent Dividend Period as a Special Dividend Period with such number of days as the Board of Trustees shall specify; provided that (i) such number of days to be specified as a Special Dividend Period shall be a multiple of 28 (in the case of Series A and B shares of RP) or a multiple of 7 (in the case of Series C shares of RP) and the number of days so specified must be such that the starting date and the ending date for a Special Dividend Period or any subsequent Dividend Periods for a Series shall not be the same as the starting date and the ending date for any other Dividend Periods for any other Series; (ii) written notice of any such designation, of the Maximum Dividend Rate, and Specified Redemption Provisions, if any, in respect thereof and of the consequences of failure to tender or to elect to hold shares, must be incurred on given at least seven days prior to such Tender Date to the first succeeding Remarketing Agents, the Paying Agent, the Securities Depository and the Beneficial Owners of shares of RP which are to be subject to such Special Dividend Period; (iii) no Special Dividend Period may commence for any share of RP during a Non-Payment Date on which Period or if the Company Trust fails to maintain either the RP Basic Maintenance Amount or the 1940 Act RP Asset Coverage and such failure is not prohibited from declaringcured; (iv) if such Special Dividend Period contains 365 or more days, paying the shares of RP subject to such Special Dividend Period shall have an aggregate liquidation preference (exclusive of accumulated but unpaid dividends and incurring premium, if any) of at least $30,000,000 or such greater or lesser amount as may be specified by the liability Board of Trustees; (v) in respect of such Deferred any Special Dividend Period, the Board of Trustees shall also determine a Maximum Dividend Rate after consultation with Remarketing Agents, which rate, as determined from time to time by formula or other means, may be fixed or variable; and (andvi) in respect of any Special Dividend Period of 365 or more days, for the avoidance Board of doubtTrustees, such Deferred Dividend shall be payable in addition toafter consultation with the Remarketing Agents, and not in lieu ofmay establish Specific Redemption Provisions. On or before 5:00 p.m., any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed New York City time, on the basis third Business Day prior to the designation of a 360-day year consisting Special Dividend Period, the Trust shall complete and deliver to S&P, on a pro forma basis, an RP Basic Maintenance Report for such proposed Special Dividend Period, taking into account the proposed number of twelve 30-day months. Commencing on days to be specified as a Special Dividend Period and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period proposed Maximum Dividend Rate to be determined with respect to such Special Dividend Period. The existence or rescission of any Special Dividend Period shall not affect any current Dividend Period or prevent the Series A Preferred StockBoard of Trustees from establishing other Special Dividend Periods of similar duration or in any way restrict the Maximum Dividend Rate or Specific Redemption Provisions which may be designated in connection with any other Special Dividend Period. If the Remarketing Agents are unable to remarket sufficient shares of RP at the commencement of a Special Dividend Period to satisfy the requirement described in clause (iv) of the preceding paragraph, then a dividend shall be payable the Dividend Period in respect of each any share of RP which otherwise would have been subject to such Special Dividend Period shall be a 28-day Dividend Period (in the case of Series A Preferred Stock and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP) and an Applicable Dividend Rate shall be set by the Remarketing Agents in accordance with the remarketing procedures. (k) If all or any part of the dividends on the shares of RP determined by implementation of the remarketing procedures described in Part II hereof is not designated by the Trust in good faith as an exempt-interest dividend within the meaning of Section 852(b)(5) of the Code solely because the Trust allocates capital gains or ordinary income to the shares of RP, (such portion of the dividends on the shares of RP (other than any Gross-up Dividends) that is not so designated is referred to herein as a "Nonqualifying Distribution"), the Trust will, not later than 270 days after the end of the Trust's fiscal year for which such period designation is made, provide notice thereof to the Paying Agent. The Paying Agent will mail a copy of such notice to each Qualified Investor (as defined below) at the address specified in such Qualified Investor's Master Purchaser's Letter as promptly as practicable after its receipt of such notice from the Trust. The Trust will, within 30 days after such notice is given to the Paying Agent, pay to the Paying Agent (who will then distribute to the Qualified Investors) , out of funds legally available therefor, an amount equal to the greater aggregate Gross-up Dividends (as defined below) with respect to all Nonqualifying Distributions made to Qualified Investors during the fiscal year in question. A "Qualified Investor" is a Beneficial Owner during such fiscal year of a share or shares of RP to whom Nonqualifying Distributions were made during such fiscal year. A " Gross-up Dividend" means payment to a Qualified Investor of an amount which, when taken together with the aggregate Nonqualifying Distributions paid to such Qualified Investor during the fiscal year in question, would cause such Qualified Investor's net yield in dollars for such fiscal year (after Federal income tax consequences) from the aggregate of both the Nonqualifying Distributions (determined without regard to the Gross-Up Dividend) and the Gross-up Dividend to be equal to the net yield in dollars for such fiscal year (after Federal income tax consequences) which would have been received by such Qualified Investor if the amount of the aggregate Nonqualifying Distributions had been so designated. Such Gross-up Dividend shall be calculated (i) without consideration being given to the amount otherwise payable in respect time value of such share of Series A Preferred Stock in accordance with the foregoing paragraph and money; (ii) assuming that no Qualified Investor is subject to the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period alternative minimum tax with respect to a dividends received from the Trust; and (iii) assuming that each Nonqualifying Distribution and Gross-Up Dividend Payment Date (to the extent that such Gross-up Dividend is not exempt from Federal income tax) would be taxable in the period commencing hands of each Qualified Investor at the maximum marginal corporate Federal income tax rate in effect during the fiscal year in question. All such designations made by the Trust in good faith following the end of each fiscal year of the Trust and all other determinations made by the Trust in good faith with respect to dividends on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shares of RP shall be payable to Holders binding and conclusive for all purposes of record on determining the close amount of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.Gross-up Dividends requ

Dividends. (a) Holders The holders of shares of Series A Preferred Stock shall be entitled to receive cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofdividends, out of the assets of the Company funds legally available therefor, and at a rate of nine percent (9%) per annum, before any dividend or distribution in cash or other property on common stock or any class or series of stock of the Corporation ranking junior to Series A Preferred as to dividends or on liquidation, dissolution or winding-up shall be declared or paid or set apart for payment. (b) Dividends on Series A Preferred shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) March 31, June 30, September 30 and December 31 of each year through December 31, 2013 (each such date being referred to herein as hereinafter individually a “Dividend Payment Date”) at the rate per annum of 6% per share ), except that if such date is a Saturday, Sunday or legal holiday then such dividend shall be payable on the Liquidation Preference; provided thatfirst immediately preceding calendar day which is not a Saturday, in Sunday or legal holiday, to holders of record as they appear on the event that books of the Corporation on any such respective dates, not exceeding sixty (60) days preceding such Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not may be declared determined by the Board of DirectorsDirectors in advance of the payment of each particular dividend. Dividends in arrears may be declared and paid at any time, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, without reference to any dividend which would ordinarily be payable on such succeeding regular Dividend Payment Date), to holders of record on such date as may be fixed by the Board of Directors of the Corporation. Dividends declared and paid in arrears shall be applied first to the earliest dividend period or periods for which any dividends remain outstanding. The amount of dividends payable per share of Series A Preferred for each dividend period shall be computed by dividing the annual rate of 9% by four. Dividends payable on Series A Preferred for the initial dividend period and for any other period that is shorter or longer less than a full semiannual dividend quarterly period will shall be computed and prorated on the basis of a 360-day year consisting of twelve 30-day months. Commencing . (c) If the Corporation is unable to pay a dividend on and following the Meeting End a Dividend Payment Date, the dividend shall be cumulative and shall accrue from and after the date of original issuance thereof, whether or not declared by the Board of Directors. Accrued dividends shall bear interest at a rate of ten percent (10%) per annum. (d) No cash dividend may be declared on any other class or series of stock ranking on a parity or junior with Series A Preferred as to dividends in the event that dividends are paid on shares respect of Common Stock in any dividend period with respect to the unless there shall also be or have been declared and paid on Series A Preferred Stockaccrued, then a unpaid dividends for all quarterly periods coinciding with or ending before such quarterly period, ratably in proportion to the respective annual dividend shall be payable in respect of each share of rates fixed therefor. (e) Dividends on Series A Preferred Stock for such period shall be paid 50% in an amount equal to cash and 50% in shares of fully-paid and nonassessable common stock of the greater Corporation, valued at the market price per share of the common stock of the Corporation. As used in this Section 3, the term “market price” shall mean (i) if the amount common stock is traded on a securities exchange or on the NASDAQ Stock Market, the closing sale price of the common stock on such exchange or the NASDAQ Stock Market, or if the common stock is otherwise payable traded in respect the over-the-counter market, the closing bid price, in each case averaged over a period of such share ninety (90) consecutive trading days prior to the date as of Series A Preferred Stock in accordance with the foregoing paragraph and which “market price” is being determined, (ii) if the product common stock is not traded on an exchange or the NASDAQ Stock Market, or otherwise traded in the over-the-counter market, the higher of (A) the aggregate dividends payable per share book value thereof as determined by any firm of Common Stock in such dividend period times independent public accountants of recognized standing selected by the Board of Directors of the Corporation as of the last day of any month ending within sixty (60) days preceding the date as of which the determination is to be made, or (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which fair value thereof determined in good faith by the Board of Directors or of the Corporation as of a duly authorized committee thereof declares date which is within fifteen (15) days of the date as of which the determination is to be made. (f) Any portion of a dividend that would result in issuance of a fractional share of common stock shall be paid in cash at the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything rate set forth in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend).

Dividends. (a) Holders of shares The holders of Series A D-1 Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, when and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall out of funds legally available for the payment of dividends, dividends per Series D-1 Preferred Share payable in cash at the applicable Annual Dividend Rate; provided, however, that if any dividend payable on any Dividend Payment Date is not be paid or in full in cash on such Dividend Payment Date, the amount payable as dividends on such Dividend Payment Date and no liability shall be incurred that is not paid in respect thereof, and instead, cash on such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date shall automatically, without any further action by the Corporation, be added to the Liquidation Preference on which the Company is relevant Dividend Payment Date at the Annual Dividend Rate applicable with respect to dividends not prohibited from declaring, paying and incurring the liability paid in respect of cash. Each such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend dividend payable in cash shall be payable in addition toarrears to the holders of record of the Series D-1 Preferred Shares, as they appear on the stock records of the Corporation at the close of business on each record date, which shall not be more than 30 days preceding the applicable Dividend Payment Date (the “Dividend Payment Record Date”), as shall be fixed by the Board of Directors. The amount of accrued and unpaid dividends on any Series D-1 Preferred Stock at any date shall be the amount of any dividends thereon, calculated at the applicable Annual Dividend Rate, to and including such date, whether or not in lieu ofearned or declared, which have not been paid; provided that an amount equal to any dividend which would ordinarily be payable that was not paid in cash on such succeeding any applicable Dividend Payment DateDate shall be added to the Liquidation Preference in accordance with this Section 3(a) and such dividend not paid in cash and so added shall not be considered as an accrued and unpaid dividend for any purposes hereof. (b) The amount of dividends payable based on the Annual Dividend Rate for each full Dividend Period for the Series D-1 Preferred Shares shall be computed by dividing the applicable Annual Dividend Rate by four (4). The amount of dividends payable for the initial Dividend Period, or any other period that is shorter or longer than a full semiannual dividend period will Dividend Period, on the Series D-1 Preferred Shares shall be computed on the basis of four 90-day quarters and a 360-day year consisting year. Holders of twelve 30-day months. Commencing on and following the Meeting End DateSeries D-1 Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of the event that dividends are on the Series D-1 Preferred Shares as herein provided. (c) All dividends paid on shares of Common Stock in any dividend period with respect to Series D-1 Preferred Shares shall be paid pro rata. (d) So long as any Series D-1 Preferred Shares are outstanding, no dividends, except as described in the immediately following sentence, shall be authorized and declared and paid or set apart for payment on any series or class or classes of Parity Shares for any period unless full accrued and unpaid dividends have been or contemporaneously are authorized and declared and paid in cash or authorized and declared and a sum sufficient for the payment thereof set apart for such payment on the Series A D-1 Preferred StockShares for the immediately preceding Dividend Period and on the Parity Shares for the immediately preceding dividend period applicable to the Parity Shares. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, for the Dividend Period referred to in the immediately preceding sentence, then a dividend all dividends authorized and declared upon Series D-1 Preferred Shares and all dividends authorized and declared upon any other series or class or classes of Parity Shares shall be payable authorized and declared ratably in respect of each share of Series A Preferred Stock for such period in an amount equal proportion to the greater respective amounts of dividends accrued and unpaid on the Series D-1 Preferred Shares and such class or classes or series of Parity Shares. (ie) So long as any Series D-1 Preferred Shares are outstanding, no dividends shall be authorized and declared and paid or set apart for payment and no other distribution shall be authorized and declared and made upon Junior Shares (other than dividends or other distributions paid solely in Junior Shares, or options, warrants or rights to subscribe for or purchase Junior Shares), nor shall any Junior Shares be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of Common Shares made for purposes of and in compliance with requirements of an employee incentive or benefit plan of the amount otherwise payable in respect Corporation or any subsidiary) for any consideration (or any moneys to be paid to or made available for a sinking fund for the redemption of any shares of such share of stock) by the Corporation, directly or indirectly (except by conversion or exercise into or exchange for Junior Shares), unless in each case the full accrued and unpaid dividends on all outstanding Series A D-1 Preferred Stock Shares shall have been paid in accordance with cash and on any other Parity Shares shall have been previously paid for the foregoing paragraph immediately preceding Dividend Period and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such immediately preceding dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior applicable to the next Dividend Payment Date. Dividends payable on a Parity Shares. (f) In any case where any Dividend Payment Date shall not be payable to Holders a Business Day, then (notwithstanding any other provision of record this Certificate of Designation) payment of dividends need not be made on such date, but may be made on the close of business next succeeding Business Day with the same force and effect as if made on the day Dividend Payment Date; provided, however, that no interest shall accrue on which such amount of dividends for the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “period from and after such Dividend Record Payment Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued to any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Dividends. (a) Holders When and as declared by the Corporation’s Board of shares Directors and to the extent permitted under the General Corporation Law of Series A Preferred Stock Delaware, the Corporation shall be entitled obligated to cumulative pay preferential dividends on to the holders of the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out prior and in preference to Common Stock as provided in this Section II.1. Dividends on each share of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date Series A Preferred Stock (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment DateSeries A Share”) shall accrue at the rate per annum of 68% per share annum, compounded quarterly, on the sum of the Series A Liquidation Preference; provided that, in Preference thereof plus all accumulated and unpaid dividends thereon from and including the event that on any Dividend Payment Date, the Company is not permitted Date of Issuance of such Series A Share to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on including the first succeeding Dividend Payment Date to occur of (i) the date on which the Company is not prohibited from declaring, paying and incurring the liability in respect Series A Liquidation Preference of such Deferred Dividend Series A Share, plus all accrued and unpaid dividends thereon, is paid to the holder thereof in connection with the liquidation of the Corporation, (and, for ii) the avoidance of doubt, date on which such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that Series A Share is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on converted into shares of Common Stock hereunder or (iii) the date on which such Series A Share is otherwise acquired by the Corporation. Such dividends shall accrue whether or not they have been declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends, and such dividends shall be cumulative such that all accrued and unpaid dividends shall be fully paid or declared with funds irrevocably set apart for payment before any dividends, distributions, redemptions or other payments may be made with respect to any Common Stock. To the extent not paid on March 31, June 30, September 30, and December 31 of each year, with respect to each Series A Share (the “Dividend Reference Dates”), all dividends which have accrued on each Series A Share outstanding during the three-month period (or other period in the case of the initial Dividend Reference Date) ending upon each such Dividend Reference Date shall be accumulated and shall remain accumulated dividends with respect to such Share until paid to the holder thereof. Except as otherwise provided herein, if at any dividend period time the Corporation pays less than the total amount of dividends then accrued with respect to the Series A Preferred StockPreferred, then a dividend such payment shall be payable in respect of each share distributed, pro rata among the holders of Series A Preferred based upon the preferences set forth in Section II.1(a) above and based upon the aggregate accrued but unpaid dividends on the Shares held by each such holder. In the event that the Corporation declares or pays any dividends upon the Common Stock for such period (whether payable in an amount equal cash, securities or other property) other than dividends payable solely in shares of Common Stock, the Corporation shall also declare and pay to the greater holders of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance at the same time that it declares and pays such dividends to the holders of the Common Stock, the dividends which would have been declared and paid with respect to the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) issuable upon conversion of the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes had all of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day outstanding Series A Preferred Stock been converted immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders record date for such dividend, or if no record date is fixed, the date as of record on the close of business on the day on which the Board record holders of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued Common Stock entitled to such Holders shall bear the Stockholder Approval Legenddividends are to be determined.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date It is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event agreed that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect Parties shall take such actions as are necessary to ensure that the timing of any regular quarterly dividend paid to common stockholders or shareholders by either Company or Parent prior to the Closing will be coordinated so that, if either the holders of Company Common Stock or the holders of Parent Common Shares receive a distribution for a particular calendar quarter prior to the Closing Date, then the holders of Parent Common Shares and the holders of Company Common Stock, respectively, shall also receive a distribution for such share of Series A Preferred Stock in accordance with calendar quarter prior to the foregoing paragraph Closing Date and (ii) the product Parties will coordinate such that any such quarterly distribution by Company and Parent shall have the same record date and the same payment date, which shall be consistent with Parent’s historical record dates and payment dates unless otherwise agreed between the Parties, in order to ensure that the common stockholders of (A) Company and the aggregate dividends payable per share common shareholders of Common Stock in such dividend period times (B) Parent receive the same number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately dividends prior to the next Dividend Payment Effective Time (provided that the amount of any such quarterly dividend declared by Company shall be consistent with Section 6.1(b)(ii) and the amount of any such quarterly dividend declared by Parent shall be consistent with Section 6.2(b)(ii)). (b) If Company or any Company Subsidiary, in consultation with Parent, determines that it is necessary to declare a Permitted REIT Dividend, Company shall notify Parent at least twenty (20) days prior to the anticipated Closing Date. Dividends Notwithstanding anything to the contrary contained herein, in the event Company declares a Permitted REIT Dividend other than a Permitted REIT Dividend necessitated by action or actions requested by Parent pursuant to Section 7.17, the Exchange Ratio will be ratably adjusted to the extent necessary or appropriate to reflect fully the effect of such change resulting from the Permitted REIT Dividend. The record date and payment date for any Permitted REIT Dividend payable on a Dividend Payment Date by Company or any Company Subsidiary shall be payable to Holders of record on the close of business on the day on which last Business Day prior to the Board of Directors Closing Date. (c) If Parent or any Parent Subsidiary, in consultation with Company, determines that it is necessary to declare a duly authorized committee thereof declares Permitted REIT Dividend, Parent shall notify Company at least twenty (20) days prior to the dividend payable (each, a “Dividend Record anticipated Closing Date”). Notwithstanding anything in this Section 3(a) to the contrarycontrary contained herein, and without limiting any other remedy available in the event Parent declares a Permitted REIT Dividend, the Exchange Ratio will be ratably adjusted to the Company extent necessary or appropriate to reflect fully the effect of such change resulting from the Permitted REIT Dividend. The record date and payment date for any Permitted REIT Dividend payable by Parent or any other party, dividends Parent Subsidiary shall not accrue or be payable in respect the close of shares initially issued any Holder who is contractually obligated business on the last Business Day prior to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendClosing Date.

Dividends. (a) The Holders of shares of Series A Preferred Stock MRP Shares shall be entitled to receive quarterly cumulative dividends on the Series A Preferred Stock payable semiannuallycash dividends, which dividends shall be declared when, as and if authorized by the Board of Directors or a duly authorized committee thereofand declared by the Company, out of the assets of the Company funds legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share equal to the Applicable Rate (or the Default Rate), and no more, payable on the Liquidation Preference; provided thatrespective dates determined as set forth in paragraph (b) of this Section 2. Dividends on Outstanding MRP Shares shall accumulate from the Original Issue Date. (i) Dividends shall be payable quarterly when, in as and if authorized by the event that Board of Directors and declared by the Company beginning on any the initial Dividend Payment Date, on MRP Shares, with respect to any Dividend Period thereafter on the first (1st) Business Day following each Quarterly Dividend Date. (ii) Except as otherwise set forth herein, the Company is not permitted shall pay an aggregate amount of federal funds or similar same-day funds, equal to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not dividends to be paid or payable to all Holders of such shares on such Dividend Payment Date and no liability in accordance with Section 14 of the Securities Purchase Agreement. The Company shall not be required to establish any reserves for the payment of dividends. (iii) Each dividend on MRP Shares shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date therefor to the Holders as their names appear on which the share ledger or share records of the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on at the close of business on the fifth (5th) day prior to the Quarterly Dividend Date (or if such day is not a Business Day, the next preceding Business Day). Dividends in arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders as their names appear on which the share ledger or share records of the Company at the close of business on a date, not exceeding 5 days preceding the payment date thereof, as may be fixed by the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”)Directors. Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or No interest will be payable in respect of shares initially issued any Holder who dividend payment or payments which may be in arrears. (i) So long as the MRP Shares are rated on any date no less than “A” by Fitch (and no less than an equivalent of such ratings by some Other Rating Agency), the dividend rate on such Outstanding MRP Shares (the “Dividend Rate”) shall be the Applicable Rate. If the lowest credit rating assigned on any date to the MRP Shares by Fitch or any Other Rating Agency is contractually obligated equal to appear and vote one of the ratings set forth in favor the table below (or its equivalent by some Other Rating Agency), the Dividend Rate for the MRP Shares shall be adjusted by adding the respective enhanced dividend amount (which shall not be cumulative) set opposite such rating (or the equivalent rating from any Other Rating Agency) to the Applicable Rate. FITCH ENHANCED DIVIDEND AMOUNT The Company shall, at all times, use its reasonable best efforts to cause at least one NRSRO to maintain a current rating on the MRP Shares. If, notwithstanding the foregoing requirements of this Section 2(c)(i), no Rating Agency is rating the Outstanding MRP Shares, the Dividend Rate (so long as no such rating exists) on the Outstanding MRP Shares shall be equal to the Applicable Rate plus 4.0% unless the Dividend Rate is the Default Rate, in which case the Dividend Rate shall remain the Default Rate. (ii) Subject to the cure provisions below, a “Default Period” will commence on any Dividend Payment Date or any date on which the Company would be required to redeem any MRP Shares regardless of whether any of the conditions of the Special Proviso in Section 3(a)(iv) were applicable, if the Company either fails to pay directly in accordance with Section 14 of the Securities Purchase Agreement or, in the case of clause (B) below, fails to deposit irrevocably in trust in federal funds or similar funds, with the Paying Agent by 1:00 pm, New York City time, (A) the full amount of any proposal dividend payable on the Dividend Payment Date (a “Dividend Default”) or (B) the full amount of any redemption price payable with respect to any redemption required hereunder regardless of whether any of the conditions of the Special Proviso exists (the “Redemption Date”) (a “Redemption Default,” and together with a Dividend Default, is hereinafter referred to as “Default”). Subject to the cure provisions of Section 2(c)(iii) below, a Default Period with respect to a Dividend Default or a Redemption Default shall end on the Business Day on which, by 12:00 noon, New York City time, all unpaid dividends and any unpaid redemption price shall have been directly paid in accordance with Section 14 of the Securities Purchase Agreement. In the case of a Default, the Dividend Rate for each day during the Default Period will be equal to the Default Rate. (iii) No Default Period with respect to a Dividend Default or Redemption Default (if such default is not solely due to the willful failure of the Company) shall be deemed to commence if the amount of any dividend or any redemption price due is paid in accordance with Section 14 of the Securities Purchase Agreement within three Business Days (the “Default Rate Cure Period”) after the applicable Dividend Payment Date or Redemption Date, together with an amount equal to the Default Rate applied to the amount of such non-payment based on the actual number of days within the Default Rate Cure Period divided by 360. (iv) The amount of dividends per share payable on each Dividend Payment Date of each Dividend Period shall be computed by multiplying the Applicable Rate (or the Default Rate) for such Dividend Period by a fraction, the numerator of which shall be 90 and the denominator of which shall be 360, multiplying the amount so obtained by the liquidation preference per MRP Share, and rounding the amount so obtained to the nearest cent. Dividends payable on any MRP Shares for any period of less than a full quarterly Dividend Period, including in connection with the first Dividend Period or upon any redemption of such shares on any date other than on a Dividend Payment Date, shall be computed by multiplying the Applicable Rate (or the Default Rate) for such period by a fraction, the numerator of which shall be the actual number of days in such period and the denominator of which shall be 360, multiplying the amount so obtained by the liquidation preference per MRP Share, and rounding the amount so obtained to the nearest cent. (d) Any dividend payment made at on MRP Shares shall first be credited against the earliest accumulated but unpaid dividends due with respect to such MRP Shares. (e) For so long as the MRP Shares are Outstanding, except as contemplated herein, the Company will not declare, pay or set apart for payment any dividend or other distribution (other than a meeting dividend or distribution paid in shares of, or options, warrants or rights to subscribe for or purchase, Common Shares or other shares of stockholders capital stock, if any, ranking junior to the MRP Shares as to dividends or upon liquidation) with respect to Common Shares or any other shares of the Company ranking junior to or on a parity with the MRP Shares as to dividends or upon liquidation, or call for redemption, redeem, purchase or otherwise acquire for consideration any Common Shares or any other such junior shares (except by conversion into or exchange for shares of the Company ranking junior to the MRP Shares as to dividends and upon liquidation) or any such parity shares (except by conversion into or exchange for shares of the Company ranking junior to or on a parity with the MRP Shares as to dividends and upon liquidation), unless (1) immediately after such transaction the MRP Shares Asset Coverage would be achieved and the Company would satisfy the MRP Shares Basic Maintenance Amount, (2) full cumulative dividends on the MRP Shares due on or prior to the date of the transaction have been declared and paid, and (3) the Company has redeemed the full number of MRP Shares required to be redeemed by any provision for mandatory redemption contained in order Section 3(a) (without regard to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or provisions of the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendSpecial Proviso).

Dividends. USI and the Borrower will not, nor will they permit any Subsidiary to, declare or pay any dividend or make any distribution on its capital stock (other than dividends payable in its own capital stock) or redeem, repurchase or otherwise acquire or retire any of its capital stock at any time outstanding, except that (i) any Subsidiary of the Borrower may declare and pay dividends or make distributions to the Borrower or to any other Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower which is not a Wholly-Owned Subsidiary may pay dividends to its shareholders generally so long as the Borrower or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such dividends receives at least its proportionate share thereof, (iii) the Borrower may declare and make dividends or distributions to USI to enable USI to, and USI may (a) Holders pay any income, franchise or like taxes, (b) pay its operating expenses (including, without limitation, legal, accounting, reporting, listing and similar expenses) in an aggregate amount not exceeding $5,000,000 in any fiscal year (excluding in any event non-cash charges related to employee compensation or compensation to non-executive members of shares USI’s board of Series A Preferred Stock directors) and (c) so long as no Default or Unmatured Default shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallycontinuing or result therefrom, which dividends repurchase its common stock and warrants and/or redeem or repurchase vested management options, in each case, from directors, officers and employees of USI and its Subsidiaries, and (iv) so long as no Default or Unmatured Default shall be declared by continuing or result therefrom, the Board Borrower may make distributions to USI and USI may redeem, repurchase, acquire or retire an amount of Directors its capital stock or a duly authorized committee thereof, out of the assets of the Company legally available warrants or options therefor, or declare and shall be payable semiannually commencing pay any dividend or make any distribution on the 180th day following the Issue Date its capital stock (or the following Business Day collectively, “Distributions”), either (a) if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum time of 6% per share making such Distribution the Leverage Ratio (calculated on a pro forma basis based on USI’s most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay date of such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreementfinancial statements, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date Distribution and no liability shall be any Indebtedness incurred in respect thereofconnection therewith, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock all in accordance with the foregoing paragraph terms of this Agreement) is less than to 3.00 to 1.00, on an unlimited basis, and (iib) if at the product time of making such Distribution the Leverage Ratio (A) calculated on a pro forma basis based on USI’s most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the aggregate dividends payable per share date of Common Stock such financial statements, such Distribution and any Indebtedness incurred in such dividend period times (B) connection therewith, all in accordance with the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes terms of this Section 3(a), a dividend period with respect Agreement) is greater than or equal to a Dividend 3.00 to 1.00 in an amount not greater than the Maximum Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendAmount.

Dividends. (a) Holders of shares 3.1. The holders of Series A D Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when, as and if authorized by the Board of Directors or a duly authorized committee thereof, and declared by the Corporation out of funds legally available for that purpose, dividends payable in cash at the assets Annual Dividend Rate. All dividends shall be cumulative from the Issue Date, whether or not in any Dividend Period or Periods there shall be funds of the Company Corporation legally available thereforfor the payment of such dividends, and shall be payable semiannually monthly, when, as and if authorized and declared, in arrears on Dividend Payment Dates, commencing on the 180th day following first Dividend Payment Date after the Issue Date. Each such dividend shall be payable in arrears to the holders of record of the Series D Preferred Shares, as they appear on the stock records of the Corporation at the close of business on each record date, which shall not be more than 30 days preceding the applicable Dividend Payment Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Record Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that), in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared fixed by the Board of Directors. Accrued and unpaid dividends for any past Dividend Periods may be authorized and declared and paid at any time, without reference to any regular Dividend Payment Date, to holders of record on such date, which shall not be paid or payable more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. The amount of accrued and unpaid dividends on such Dividend Payment Date and no liability any Series D Preferred Share at any date shall be incurred in respect thereofthe amount of any dividends thereon calculated at the applicable rate to and including such date, and instead, such Deferred Dividend shall be whether or not earned or declared, become payable and be which have not been paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)cash. 3.2. The amount of dividends payable for each full Dividend Period for the Series D Preferred Shares shall be computed by dividing the Annual Dividend Rate by twelve. The amount of dividends payable for the initial Dividend Period, or any other period that is shorter or longer than a full semiannual dividend period will Dividend Period, on the Series D Preferred Shares shall be computed on the basis of twelve 30-day months and a 360-day year consisting year. Holders of twelve 30-day months. Commencing on and following the Meeting End DateSeries D Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative dividends, as herein provided, on the event that Series D Preferred Shares, except for any other amounts provided herein. 3.3. So long as any Series D Preferred Shares are outstanding, no dividends, except as described in the immediately following sentence, shall be authorized and declared and paid or set apart for payment on any series or class or classes of Parity Shares for any period unless full cumulative dividends have been or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for such payment on the Series D Preferred Shares for all Dividend Periods prior to the dividend payment date for such class or classes or series of Parity Shares. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends authorized and declared upon Series D Preferred Shares and all dividends authorized and declared upon any other series or class or classes of Parity Shares shall be authorized and declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Series D Preferred Shares and such class or classes or series of Parity Shares. 3.4. So long as any Series D Preferred Shares are outstanding, no dividends shall be authorized and declared and paid or set apart for payment or other distribution authorized and declared and made upon Junior Shares (other than dividends or other distributions (i) paid in respect of the Common Shares issued pursuant to the Securities Purchase Agreement or stock issued pursuant to the Contingent Value Rights Agreement or (ii) paid solely in Junior Shares, or options, warrants or rights to subscribe for or purchase Junior Shares), nor shall any Junior Shares be redeemed, purchased or otherwise acquired (other than (i) a redemption, purchase or other acquisition of Common Shares made for purposes of and in compliance with requirements of an employee incentive or benefit plan of the Corporation or any subsidiary or (ii) a purchase or other acquisition of Common Shares made in connection with the restrictions on ownership and transfer set forth in Section 4.07 of the Charter), for any consideration (or any moneys to be paid to or made available for a sinking fund for the redemption of any shares of Common Stock such stock) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Shares), unless in each case the full cumulative dividends on all outstanding Series D Preferred Shares and any dividend period other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the Series A D Preferred Stock, then a Shares and all past dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period periods with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendParity Shares.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends Dividends on the Series A E Preferred Stock will be payable semiannuallysemi-annually in arrears, which dividends shall be declared when, as and if authorized by the Board of Directors or a duly authorized committee thereof, and declared by the Corporation out of the assets of the Company legally available thereforfunds, and shall on a non-cumulative basis on the $10,000 per share liquidation preference, at an annual rate equal to 9%. Subject to the foregoing, dividends will be payable semiannually commencing in arrears on the 180th day following the Issue Date December 1 and June 1 of each year (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as each, a “Dividend Payment Date”) at ), commencing with the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on first such Dividend Payment Date and no liability shall to occur at least 20 calendar days after the Original Issue Date (as defined in paragraph 3(b)), or, if any such day is not a business day, the next business day. Each dividend will be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred to holders of record as they appear on the first succeeding Corporation’s stock register on the fifteenth day of the month prior to the month in which the relevant Dividend Payment Date on which the Company is not prohibited occurs. Each period from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding including a Dividend Payment Date). The amount Date (or the date of dividends the issuance of the Series E Preferred Stock) to but excluding the following Dividend Payment Date is herein referred to as a “Dividend Period.” Dividends payable for any other period that is shorter or longer than a full semiannual dividend period each Dividend Period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing If a scheduled Dividend Payment Date falls on and following a day that is not a business day, the Meeting End dividend will be paid on the next business day as if it were paid on the scheduled Dividend Payment Date, in and no interest or other amount will accrue on the event dividend so payable for the period from and after that Dividend Payment Date to the date the dividend is paid. (b) Dividends on the Series E Preferred Stock will be non-cumulative. If for any reason the Board of Directors does not authorize and the Corporation does not declare full cash dividends are paid on shares the Series E Preferred Stock for a Dividend Period, the Corporation will have no obligation to pay any dividends for that period, whether or not the Board of Common Directors authorizes and the Corporation declares dividends on the Series E Preferred Stock in for any subsequent Dividend Period. The Corporation is not obligated to and will not pay holders of the Series E Preferred Stock any dividend period in excess of the dividends on the Series E Preferred Stock that are payable as described above. There is no sinking fund with respect to dividends. (c) The Series E Preferred Stock created hereby shall rank equally, as to dividends, with the Corporation’s Series C 9% Non-Cumulative Perpetual Convertible Preferred Stock (the “Series C Preferred Stock”), Series D 9% Non-Cumulative Perpetual Convertible Preferred Stock (the “Series D Preferred Stock”) and Series F 9% Non-Cumulative Perpetual Convertible Preferred Stock (the “Series F Preferred Stock”). The Corporation may not declare or pay or set apart for payment full dividends on any series of preferred stock ranking, as to dividends, equally with or junior to the Series A E Preferred StockStock unless the Corporation has previously declared and paid or set apart for payment, then a dividend shall be payable in respect of each share of or the Corporation contemporaneously declares and pays or sets apart for payment, full dividends on the Series A E Preferred Stock for such period the most recently completed Dividend Period. When dividends are not paid in an amount equal to full on the greater of (i) the amount otherwise payable in respect of such share of Series A E Preferred Stock in accordance with and any series of preferred stock ranking equally as to dividends, all dividends upon the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A E Preferred Stock is then convertibleand such equally ranking series will be declared and paid pro rata. For purposes of this Section 3(acalculating the pro rata allocation of partial dividend payments, the Corporation will allocate dividend payments based on the ratio between the then-current dividend payments due on shares of Series E Preferred Stock and the aggregate of the current and accrued dividends due on any equally ranking series. The Corporation will not pay interest or any sum of money instead of interest on any dividend payment that may be in arrears on the Series E Preferred Stock. Unless the Corporation has paid or declared and set aside for payment full dividends on the Series E Preferred Stock for the most recently completed Dividend Period, the Corporation will not: · declare or make any dividend payment or distribution on any junior ranking stock, other than a dividend paid in junior ranking stock, or · redeem, purchase, otherwise acquire or set apart money for a sinking fund for the redemption of any junior or equally ranking stock, except by conversion into or exchange for junior ranking stock. As used herein, “junior to the Series E Preferred Stock,” “junior ranking stock” and like terms refer to the Corporation’s Common Stock and any other class or series of the Corporation’s capital stock over which the Series E Preferred Stock has preference or priority in the payment of dividends or in the distribution of assets on the Corporation’s liquidation, dissolution or winding up, and “equally ranking” and like terms refer to the Series C Preferred Stock, the Series D Preferred Stock and the Series F Preferred Stock, and any other class or series of the Corporation’s capital stock that ranks on a parity with the Series E Preferred Stock in the payment of dividends or in the distribution of assets on the Corporation’s liquidation, dissolution or winding up. Subject to the conditions described above, and not otherwise, dividends (payable in cash, stock, or otherwise), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall as may be payable to Holders of record on the close of business on the day on which determined by the Board of Directors or a duly authorized committee thereof declares of the dividend payable (eachBoard of Directors, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) may be declared and paid on the Corporation’s Common Stock and any other stock ranking equally with or junior to the contrarySeries E Preferred Stock from time to time out of any assets legally available for such payment, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders holders of the Company Series E Preferred Stock will not be entitled to participate in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendthose dividends.

Dividends. (a) Holders From and after the first date of shares issuance of Series A any Preferred Stock Shares (the “Initial Issuance Date”), the Preferred Shares shall be entitled to cumulative commence accruing dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment DateDividends”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be Rate computed on the basis of a 360-day year consisting of and twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend Dividends shall be payable in respect arrears on the first Trading Day of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable Fiscal Quarter (each, a “Dividend Record Date”)) with the first Dividend Date being the first Trading Day of the initial Fiscal Quarter commencing after the Initial Issuance Date. Dividends shall be payable on each Dividend Date, to each record holder (each, a “Holder”, and collectively, the “Holders”) of Preferred Shares on the applicable Dividend Date, in shares of Common Stock (“Dividend Shares”) so long as there has been no Equity Conditions Failure; provided however, that the Company may, at its option following notice to each Holder, capitalized such Dividend by increasing the Stated Value of each Preferred Share on such Dividend Date (“Capitalized Dividend”) or in a combination of a Capitalized Dividend and a payment in Dividend Shares. The Company shall deliver a written notice (each, a “Dividend Election Notice”) to each Holder of the Preferred Shares on or prior to the tenth (10th) Trading Day immediately prior to the applicable Dividend Date (each, a “Dividend Notice Due Date”) (the date such notice is delivered to all of the Holders, the “Dividend Notice Date”) which notice (i) either (A) confirms that Dividend to be paid on such Dividend Date shall be paid entirely in Dividend Shares or (B) elects to effect a Capitalized Dividend or a combination of Capitalized Dividend and a payment in Dividend Shares and specifies the amount of Dividend that shall be a Capitalized Dividend and the amount of Dividend, if any, that shall be paid in Dividend Shares and (ii) certifies that there has been no Equity Conditions Failure. If an Equity Conditions Failure has occurred as of the Dividend Notice Date, then unless the Company has elected to effect a Capitalized Dividend, the Dividend Election Notice shall indicate that unless such applicable Holder waives the Equity Conditions Failure, the Dividend shall be effected as a Capitalized Dividend. Notwithstanding anything in this Section 3(a) herein to the contrary, if no Equity Conditions Failure has occurred as of the Dividend Notice Date, but an Equity Conditions Failure occurs at any time prior to the Dividend Date, (A) the Company shall provide each Holder a subsequent notice to that effect and without limiting (B) unless such applicable Holder waives the Equity Conditions Failure, the Dividend shall be paid to such Holder in cash. Dividend to be paid on a Dividend Date in Dividend Shares shall be paid in a number of fully paid and nonassessable shares (rounded to the nearest whole share) of Common Stock equal to the quotient of (1) the amount of Dividend payable on such Dividend Date less any other remedy available Capitalized Dividend and (2) the Dividend Conversion Price in effect on the applicable Dividend Date. For the avoidance of doubt, all Dividends must be Capitalized Dividends until the Company shall have obtained the Stockholder Approval on the Stockholder Approval Date (in each case as defined in the Series C-2 Certificate of Designations). (b) When any Dividend Shares are to be paid on a Dividend Date to a Holder, the Company shall (i) (A) provided that the Company’s transfer agent (the “Transfer Agent”) is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program (“FAST”), credit such aggregate number of Dividend Shares to which such Holder shall be entitled to such Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or (B) if the Transfer Agent is not participating in FAST, issue and deliver on the applicable Dividend Date, to the address set forth in the register maintained by the Company for such purpose pursuant to the Issuance Agreement or to such address as specified by such Holder in writing to the Company at least two (2) Business Days prior to the applicable Dividend Date, a certificate, registered in the name of such Holder or its designee, for the number of Dividend Shares to which such Holder shall be entitled and (ii) with respect to each Dividend Date, increase the Stated Value of the Preferred Shares by the amount of any other partyCapitalized Dividend. (c) Prior to the payment of Dividends on a Dividend Date, dividends Dividends on the Preferred Shares shall not accrue or at the Dividend Rate and be payable by way of inclusion of the Dividends in respect of shares initially issued the Conversion Amount on each Conversion Date in accordance with Section 4(b) or upon any Holder who is contractually obligated to appear redemption in accordance with Section 9 or upon any required payment upon any Bankruptcy Triggering Event. From and vote in favor after the occurrence and during the continuance of any proposal made Triggering Event, the Dividend Rate in effect with respect to such determination shall automatically be increased to the Default Rate. In the event that such Triggering Event is subsequently cured (and no other Triggering Event then exists (including, without limitation, for the Company’s failure to pay such Dividends at a meeting of stockholders the Default Rate on the applicable Dividend Date)), the adjustment referred to in the preceding sentence shall cease to be effective as of the Company in order calendar day immediately following the date of such cure; provided that the Dividends as calculated and unpaid at such increased rate during the continuance of such Triggering Event shall continue to effect apply to the Stockholder Approval (or whose transferor Holder was so obligated) if extent relating to the days after the occurrence of such Holder (or Triggering Event through and including the date of such transferor Holder or the Affiliates cure of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendTriggering Event.

Dividends. (a) Holders of shares of outstanding Series A I Preferred Stock shall be entitled to cumulative receive, out of funds of the Corporation legally available therefor, dividends at the annual rate of 8.0% per share on the Series A Preferred Stock payable semiannually, which dividends Original Purchase Price (the “Dividend Rate”). Dividends shall be declared by the Board of Directors or a duly authorized committee thereofCorporation and paid in arrears on each Dividend Payment Date (as defined below) commencing on March 15, out of 2009 for the assets of the Company legally available therefor, and Dividend Period ending immediately prior to such Dividend Payment Date. Such dividends shall be payable semiannually commencing to the record holders of Series I Preferred Stock on the 180th day following the Issue Date (or the following Business Day if any such payment record date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which such dividends are declared (notwithstanding any transfer or other disposition after such record date and prior to the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to If a Dividend Payment Date is the period commencing not a business day, payment will be made on the preceding next succeeding business day, without any interest or other payment in lieu of interest accruing with respect to this delay. Subject to Section 3(e) below, all such dividends shall accrue from the most recent date as to which dividends shall have been paid or, if no dividends have been paid, from the original date of issuance of the Series I Preferred Stock (the “Issue Date”), whether or not in any Dividend Period(s) there shall have been funds of the Corporation legally available for the payment of such dividends. Notwithstanding the foregoing, such dividends shall be paid only to the extent assets are legally available therefor on the Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior any amounts for which assets are not legally available shall be paid promptly as assets become legally available therefore. Any partial payment of dividends otherwise required to the next Dividend Payment Date. Dividends payable be paid on a Dividend Payment Date shall will be payable to Holders made pro rata among the applicable record holders of record shares of Series I Preferred Stock based on the close their respective holdings of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable such shares. (each, a i) The term “Dividend Record Payment Date”). Notwithstanding anything in this Section 3(a) to the contrary” shall mean September 15th and March 15th of each year, and without limiting any other remedy available to the Company or any other partybeginning with March 15, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend2009.

Dividends. (a) Holders Each of shares of Series A Preferred Stock Parent and the Company shall declare a dividend to their respective stockholders, the record and payment date for which shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the last Business Day prior to the Effective Time, in each case, subject to funds being legally available therefor. The per share dividend amount payable by the Company shall be an amount equal to (i) the Company’s most recent monthly dividend, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Board Effective Time occurs, and divided by the actual number of Directors or a duly authorized committee thereof declares days in the calendar month in which such dividend is declared, plus (ii) if necessary to enable the Company to make aggregate dividend distributions during its final taxable period equal to the Minimum Distribution Dividend, an additional amount (the “Company Additional Dividend Amount”) necessary so that the aggregate dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) is equal to the contraryMinimum Distribution Dividend, plus (iii) the Parent Additional Dividend Amount, if any, divided by the quotient of (A) one (1) divided by (B) the Exchange Ratio. The per share dividend amount payable by Parent shall be an amount equal to (i) Parent’s most recent quarterly dividend, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Effective Time occurs, and without limiting any other remedy available divided by the actual number of days in the calendar quarter in which such dividend is declared, plus (ii) the Company Additional Dividend Amount, if any, divided by the Exchange Ratio, plus (iii) if necessary to enable Parent to make aggregate dividend distributions during the taxable year that includes the Closing Date equal to the Minimum Distribution Dividend, an additional amount (the “Parent Additional Dividend Amount”) necessary so that the aggregate dividend payable is equal to the Minimum Distribution Dividend. If the Company determines it is necessary to declare the Additional Dividend Amount, the Company shall notify Parent of such determination at least ten (10) days prior to the Company or any other partyStockholder Meeting. (b) Subject to Section 6.18(a), dividends Parent shall not accrue make, declare or be payable set aside any dividend or other distribution to its stockholders other than the authorization and payment of (i) distributions at its stated dividend or distribution rates with respect to the Parent Preferred Stock and (ii) regular quarterly cash distributions in respect of Parent Common Stock at an annual rate not in excess of $2.90 per share (with such increases in such annual rate as may be approved by Parent’s board of directors from time to time). (c) In the event that a distribution or dividend with respect to the shares initially issued any Holder who is contractually obligated of Company Common Stock permitted under the terms of this Agreement has (i) a record date prior to appear the Effective Time and vote in favor of any proposal made at a meeting of stockholders (ii) has not been paid as of the Effective Time, the holders of shares of Company in order Common Stock shall be entitled to effect receive such distribution or dividend from the Stockholder Approval (or whose transferor Holder was so obligated) if Company at the time such Holder (or such transferor Holder or the Affiliates shares are exchanged pursuant to Article III of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendthis Agreement.

Dividends. (a) The Holders as of shares of Series A Preferred Stock 12:00 noon, New York City time, on the applicable Dividend Payment Date, shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofTrustees, out of the assets of the Company funds legally available therefor, cumulative dividends, at the Applicable Dividend Rate. Dividends on the shares of RP so declared and payable shall be paid (i) in preference to and in priority over any dividends declared and payable on the Common Shares, and (ii) to the extent permitted under the Code and to the extent available and in preference to and priority over any dividends declared and payable on the Common Shares, out of tax-exempt income earned on the Trust's investments, subject to the application of the alternative minimum tax provisions of the Code. Dividends on shares of RP will be designated as exempt-interest dividends up to the amount of net tax-exempt income of the Trust for purposes of section 852 of the Code. (b) Dividends on each share of RP shall accumulate from its Date of Original Issue and will be payable, when, as and if declared by the Board of Trustees, on each Dividend Payment Date applicable to such share of RP. (c) Each declared dividend shall be payable semiannually commencing on the 180th day following applicable Dividend Payment Date to the Issue Holder or Holders of such shares of RP as set forth in paragraph 3(a). Dividends on any share of RP in arrears with respect to any past Dividend Payment Date (or the following Business Day if may be declared and paid at any such payment date is not a Business Day) (each such date being referred time, without reference to herein as a “any regular Dividend Payment Date”, to the Holder of such share as of a date not exceeding five Business Days preceding the date of payment thereof as may be fixed by the Board of Trustees. Any dividend payment made on any share of RP shall be first credited against the dividends accumulated but unpaid (whether or not earned or declared) at with respect to the earliest Dividend Payment Date on which dividends were not paid. (d) Neither Holders nor Beneficial Owners of shares of RP shall be entitled to any dividends on the shares of RP, whether payable in cash, property or stock, in excess of full cumulative dividends thereon, except as set forth in paragraph 3(1) of this Part I. Except as provided in paragraph 3(h) of this Part I, neither Holders nor Beneficial Owners of shares of RP shall be entitled to any interest, or other additional amount, on any dividend payment on any share of RP which may be in arrears. (e) Except as otherwise provided herein, the Applicable Dividend Rate on each share of RP for each Dividend Period with respect to such share shall be equal to the rate per annum that results from implementation of 6% per the remarketing procedures described in Part II hereof. (f) The amount of declared dividends for each share of RP payable on each Dividend Payment Date in respect of any Dividend Period shall be computed by the Trust by multiplying the Applicable Dividend Rate in effect with respect to dividends payable on such share on such Dividend Payment Date by a fraction the Liquidation Preference; provided thatnumerator of which shall be the number of days such share was outstanding from and including its Date of Original Issue or the preceding Dividend Payment Date, as the case may be, to and including the last day of such Dividend Period, and the denominator of which shall be 365, and then multiplying the percentage so obtained by $100,000. In accordance with the remarketing procedures described in the event that Part II hereof, there may exist at any given time a number of Dividend Payment Dates for all outstanding shares of RP and dividends on any such share shall be payable only on a Dividend Payment Date applicable to such share. (g) No later than by 12:00 noon, New York City time, on each Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under Trust shall deposit in same-day funds with the terms Paying Agent the full amount of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or and payable on such Dividend Payment Date and no liability on any share of RP. (h) The Applicable Dividend Rate for each Dividend Period commencing during a Non-Payment Period shall be incurred in respect thereof, and instead, such Deferred equal to the Non-Payment Period Rate; any share of RP for which an Optional Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred Period or a Special Dividend Period would otherwise have commenced on the first succeeding day of a Non-Payment Period shall have, instead, a 7-day Dividend Period; and each Dividend Period commencing after the first day of, and during, a Non-Payment Period shall be a 7-day Dividend Period. Any amount of any dividend due on any Dividend Payment Date on which the Company is not prohibited from declaringfor any shares of RP (if, paying and incurring the liability in respect of such Deferred Dividend (andprior to 12:00 noon, for the avoidance of doubtNew York City time, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount , the Trust has declared such dividend payable on or within three Business Days after such Dividend Payment Date to the Holders of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed such shares of RP as of 12:00 noon, New York City time, on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Business Day preceding such Dividend Payment Date, in the event that dividends are paid on shares of Common Stock in any dividend period ) or redemption price with respect to any shares of RP not paid to such Holders when due but paid to such Holders in the Series A Preferred Stocksame form of funds by 12:00 noon, then New York City time, on any of the first three Business Days after such Dividend Payment Date or due date, as the case may be, shall incur a dividend shall late charge to be payable in respect of each share of Series A Preferred Stock paid therewith to such Holders and calculated for such period in an amount equal of non-payment at the Non-Payment Period Rate applied to the greater amount of such non-payment based on the actual number of days comprising such period divided by 365. For the purposes of the foregoing and paragraphs 3(g) and 4(g) of this Part I, payment to a person in same-day funds on any Business Day at any time shall be considered equivalent to payment to such person in New York Clearing House (next-day) funds at the same time on the preceding Business Day, and any payment made after 12:00 noon, New York City time, on any Business Day shall be considered to have been made instead in the same form of funds and to the same person before 12:00 noon, New York City time, on the next Business Day. (i) Except during a Non-Payment Period, by 1:00 p.m. on the amount otherwise payable Tender Date in the Remarketing at the end of the Initial Dividend Period applicable to a share of RP, and by 1:00 p.m. on the Tender Date in the Remarketing at the end of each subsequent Dividend Period applicable to a share of RP, the Beneficial Owner of such share may elect to tender such share or to hold such share for the next Dividend Period. If the Beneficial Owner of such share of RP elects to hold such share, such Beneficial Owner shall elect to hold such share for a 7-day Dividend Period or a 28-day Dividend Period or any available Optional Dividend Period or a Special Dividend Period if the succeeding Dividend Period with respect to such share has been designated by the Board of Trustees as a Special Dividend Period; provided that, (i) if such Beneficial Owner shall elect to hold such share for a 7-day Dividend Period or a 28-day Dividend Period, but (a) there are no Remarketing Agents or the Remarketing Agents are not required to conduct a Remarketing, such Beneficial Owner shall hold such share for a 7-day Dividend Period, and the Applicable Dividend Rate shall be the Maximum Dividend Rate for a 7-day Dividend Period or (b) the Remarketing Agents are unable to remarket in such Remarketing all shares of RP subject to such Remarketing and tendered (or deemed tendered) to them at a price of $100,000 per share, such Beneficial Owner shall hold such share for the Dividend Period it had chosen and the Applicable Dividend Rate therefor shall be the applicable Maximum Dividend Rate, and (ii) if the Board of Trustees has designated the next succeeding Dividend Period with respect to such share as a Special Dividend Period or such Beneficial Owner elects an available Optional Dividend Period with respect to such shares and there are no Remarketing Agents, the Remarketing Agents are not required to conduct a Remarketing or the Remarketing Agents are unable to remarket in the Remarketing on the Dividend Reset Date following such Tender Date all shares of RP tendered (or deemed tendered) to them at a price of $100,000 per share, then the next succeeding Dividend Period in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the a 7-day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contraryPeriod, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.Applicable Dividend Rate

Dividends. (a) Holders Subject to Section E below, the holders of shares of Series A Convertible Preferred Stock Stock, in preference to the holders of any Junior Securities other than Common Stock, shall be entitled to cumulative receive mandatory cash dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition an As-Converted-to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30Common-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period -Basis in an amount equal to the greater cash dividends declared by the Board on the Common Stock out of (i) funds of the amount otherwise payable in respect of such share of Series A Corporation legally available therefor, but only as, when, and if so declared. The Convertible Preferred Stock in accordance with will not accrue dividends until and unless the foregoing paragraph and (ii) date on which the product holders of (A) Capital Stock of the aggregate dividends payable per share Corporation do not approve the Merger at the first meeting of Common Stock in such dividend period times (B) the number of shares of Common Stock into stockholders upon which such share of Series A Preferred Stock matter is then convertible. For purposes of this Section 3(a), submitted for a dividend period with respect to a Dividend Payment Date is vote after the period commencing date hereof or otherwise on the preceding 60th day following the closing of the Exchange Offer if the Merger has not been consummated by such date (the “Dividend Payment Accrual Date”). Beginning on and following such Dividend Accrual Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior date upon which the Merger becomes effective, the Convertible Preferred Stock shall accrue cumulative dividends on its Liquidation Preference at an annual rate of 20%, which shall be added to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders Liquidation Preference of record such Convertible Preferred Stock on the close last day of business each calendar quarter (i.e., March 31, June 30, September 30 and December 31) (all dividends on Convertible Preferred Stock described in this Section D declared or accrued but remaining unpaid and which have not been added to the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a Liquidation Preference pursuant to this Section D being referred to herein as “Dividend Record DateAccrued Dividends”). Notwithstanding anything in All dividend accruals pursuant to this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends D shall be based on a 365-day year. Any Accrued Dividends shall not accrue or bear interest. Accrued but unpaid dividends may be payable in respect of shares initially issued declared and paid at any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendtime.

Dividends. Dividends that become payable on Restricted Shares -------------------- shall be held by the Company in escrow in accordance with the provisions of this Agreement. In this connection, on each Common Stock dividend payment date while the Restricted Shares remain outstanding and restricted hereunder (a) Holders each, a "RS Dividend Date"), the Company shall be deemed to have reinvested any cash dividend otherwise then payable on the Restricted Shares in a number of phantom shares of Series A Preferred Common Stock (including any fractional share) equal to the quotient of such dividend divided by the Market Value of a share of Common Stock on such RS Dividend Date and to have credited such shares to an unfunded book account in the Grantee's name (the "Dividend Escrow Account"). As of each subsequent RS Dividend Date, the phantom shares then credited to the Dividend Escrow Account shall be entitled deemed to cumulative dividends on receive a dividend at the Series A Preferred Stock payable semiannuallythen applicable dividend rate, which dividends shall be declared reinvested in the same manner in such account in the form of additional phantom shares. If any dividend payable on any RS Dividend Date is paid in the form of Common Stock, then any such stock dividend shall be treated as additional Restricted Shares under this Agreement, with such additional Restricted Shares being subject to the same vesting and other restrictions as the Restricted Shares with respect to which dividends became payable, and with any fractional share being treated as a cash dividend that is subject to the escrow and reinvestment procedures in this Section 4. Any other non-cash dividends credited with respect to Restricted Shares shall be subject to the escrow and reinvestment procedures in this Section 4, and shall be valued for purposes of this Section 4 at the fair market value thereof as of the relevant RS Dividend Date, as determined by the Compensation Committee of the Board of Directors or a duly authorized committee thereof, out of (the assets of "Committee") in its sole discretion. On the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Vesting Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter shall deliver out of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect escrow to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the Grantee that whole number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior equal to the next whole number of phantom shares then credited to the Dividend Payment DateEscrow Account as the result of the deemed investment and reinvestment in phantom shares of the dividends attributable to the Restricted Shares. Dividends payable on a Dividend Payment Date The value of any fractional share shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything paid in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendcash.

Dividends. (a) Holders As part of shares the Acquisition, the boards of Series A Preferred Stock shall be entitled Keysight and Spirent have agreed the declaration and payment of the Permitted Dividend in lieu of a final dividend for the year ended 31 December 2023. The Permitted Dividend is intended and expected to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Spirent Board and will be payable to Spirent Shareholders at any time before the Effective Date (or, if the Acquisition is implemented by way of Directors a Takeover Offer, at any time before the Takeover Offer becomes or a duly authorized committee thereof, out is declared unconditional) to Spirent Shareholders on the register of members at the relevant record date. Payment of the assets Permitted Dividend is not conditional upon the Effective Date occurring. In addition to the Permitted Dividend, the Spirent Board will be entitled (if it sees fit) to declare and approve the payment of a dividend to Spirent Shareholders of up to 1.0 ▇▇▇▇▇ per Spirent Share if the Effective Date has not occurred by 30 June 2025. If declared, the Additional Dividend will be payable at any time thereafter and before the Effective Date (or, if the Acquisition is implemented by way of a Takeover Offer, at any time before the Takeover Offer becomes or is declared unconditional) to Spirent Shareholders on the register of members at the relevant record date. Payment of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date Additional Dividend is not a Business Day) (each such date being referred to herein as a “conditional upon the Effective Date occurring. Keysight and Spirent have agreed that the Spirent Board may declare and pay the Permitted Dividend Payment Date”) at and the rate per annum of 6% per share on the Liquidation Preference; provided that, Additional Dividend without any reduction in the event that Acquisition Price. If, on any Dividend Payment or after the date of this announcement and prior to the Effective Date, any dividend, distribution, or other return of capital is declared, made, or paid or becomes payable by Spirent (other than the Company is not permitted Permitted Dividend and/or the Additional Dividend), Keysight reserves the right to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) reduce the Acquisition Price payable under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, Acquisition for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in Spirent Shares by an amount equal to the greater amount of (i) the amount otherwise payable in respect any such dividend, distribution or other return of capital. In such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Datecircumstances, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date Spirent Shareholders shall be payable entitled to Holders retain any such dividend, distribution, or other return of record on the close of business on the day on which the Board of Directors value declared, made, or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendpaid.

Dividends. (a) Holders The holder of shares of Series A Preferred Stock each voting trust certificate shall be entitled to cumulative dividends on receive payments equal to the Series A Preferred Stock payable semiannuallycash dividends, which dividends shall be declared if any, received by the Board Trustee prior to the termination of Directors this Agreement upon the shares of Company Stock beneficially represented by each such voting trust certificate, such payment to be made by the Trustee to the person or a duly authorized committee thereof, out persons entitled thereto within three business days after receipt of such cash dividend by the assets Trustee unless and except to the extent that the Trustee has given the Company the instructions contemplated by Section 7(d) hereof. If any dividend in respect of the Company legally available therefor, and shall be payable semiannually commencing on Stock deposited with the 180th day following the Issue Date (or the following Business Day if any such payment date Trustee is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatpaid, in whole or in part, in capital stock of the event that on any Dividend Payment DateCompany having general voting powers, in a transaction nontaxable to the recipient, the Company is not permitted Trustee shall likewise hold, subject to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreementthis Agreement, credit agreement, guaranty, or related agreement, the capital stock so received by the Trustee on account of such dividend (a “Deferred Dividend”) which shall not thereupon also be declared deemed to be "Company Stock"), and the holder of each voting trust certificate beneficially representing Company Stock on which such stock dividend has been paid shall receive an additional voting trust certificate issued under this Agreement for the number of shares and class of stock received by the Board of Directors, shall not be paid or payable on Trustee as such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred StockCompany Stock beneficially represented by such holder's voting trust certificate. Holders entitled to receive the dividends described above shall be those registered as such on the transfer books of the Trustee at the close of business on day fixed by the Company for the taking of a record to determine those holders of its stock entitled to receive such dividends, or if the Trustee has fixed a date, as hereinafter in this paragraph provided, for the purpose of determining the holders of voting trust certificates entitled to receive such payment or distribution, then a dividend shall be payable in respect of each share of Series A Preferred Stock for registered as such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on at the close of business on the day date so fixed by the Trustee, but in all events subject to applicable law. (c) The transfer books of the Trustee may be closed temporarily by the Trustee for a period not exceeding 20 days preceding the date fixed for the payment or distribution of dividends or the distribution of assets or rights, or any other time in the discretion of the Trustee. In lieu of providing for the closing of the books against the transfer of voting trust certificates, and except as may otherwise be provided by applicable law, the Trustee may fix a date not exceeding 20 days preceding any date fixed by the Company for the payment or distribution of dividends, or for the distribution of assets or rights, as a record date for the determination of the holders of voting trust certificates entitled to receive such payment or distribution, and the holders of voting trust certificates of record at the close of business on which such date shall exclusively be entitled to participate in such payments or distribution, but in all events subject to applicable law. (d) In lieu of receiving cash dividends upon Company Stock and paying the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) same to the contraryholders of voting trust certificates pursuant to the provisions of this Agreement, the Trustee may instruct the Company in writing to pay such dividends to the holders of the voting trust certificates. Upon receipt of such written instructions, the Company shall pay such dividends directly to the holders of the voting trust certificates as their interests may appear. Upon such instructions being given by the Trustee to the Company, and without limiting until revoked by the Trustee, all liability of the Trustee with respect to such dividends shall cease. The Trustee may at any other remedy available time revoke such instructions and by written notice to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated direct it to appear and vote in favor of any proposal made at a meeting of stockholders of make dividend payments to the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendTrustee.

Dividends. (a) Holders of shares 3.1. The holders of Series A E Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when, as and if authorized by the Board of Directors or a duly authorized committee thereof, and declared by the Corporation out of funds legally available for that purpose, dividends payable in cash at the assets Annual Dividend Rate. All dividends shall be cumulative from the date such Series E Preferred Shares are issued (but shall include accrued but unpaid dividends on the Series D Preferred Shares that have been exchanged for the Series E Preferred Shares), whether or not in any Dividend Period or Periods there shall be funds of the Company Corporation legally available thereforfor the payment of such dividends, and shall be payable semiannually monthly, when, as and if authorized and declared, in arrears on Dividend Payment Dates, commencing on the 180th day following first Dividend Payment Date after the Issue date such Series E Preferred Shares are issued. Each such dividend shall be payable in arrears to the holders of record of the Series E Preferred Shares, as they appear on the stock records of the Corporation at the close of business on each record date, which shall not be more than 30 days preceding the applicable Dividend Payment Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Record Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that), in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared fixed by the Board of Directors. Accrued and unpaid dividends for any past Dividend Periods may be authorized and declared and paid at any time, without reference to any regular Dividend Payment Date, to holders of record on such date, which shall not be paid or payable more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. The amount of accrued and unpaid dividends on such Dividend Payment Date and no liability any Series E Preferred Share at any date shall be incurred in respect thereofthe amount of any dividends thereon calculated at the applicable rate to and including such date, and instead, such Deferred Dividend shall be whether or not earned or declared, become payable and be which have not been paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)cash. 3.2. The amount of dividends payable for each full Dividend Period for the Series E Preferred Shares shall be computed by dividing the Annual Dividend Rate by twelve. The amount of dividends payable for the initial Dividend Period, or any other period that is shorter or longer than a full semiannual dividend period will Dividend Period, on the Series E Preferred Shares shall be computed on the basis of twelve 30-day months and a 360-day year consisting year. Holders of twelve 30-day months. Commencing on and following the Meeting End DateSeries E Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative dividends, as herein provided, on the event that Series E Preferred Shares, except for any other amounts provided herein. 3.3. So long as any Series E Preferred Shares are outstanding, no dividends, except as described in the immediately following sentence, shall be authorized and declared and paid or set apart for payment on any series or class or classes of Parity Shares for any period unless full cumulative dividends have been or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for such payment on the Series E Preferred Shares for all Dividend Periods prior to the dividend payment date for such class or classes or series of Parity Shares. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends authorized and declared upon Series E Preferred Shares and all dividends authorized and declared upon any other series or class or classes of Parity Shares shall be authorized and declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Series E Preferred Shares and such class or classes or series of Parity Shares. 3.4. So long as any Series E Preferred Shares are outstanding, no dividends shall be authorized and declared and paid or set apart for payment or other distribution authorized and declared and made upon Junior Shares (other than dividends or other distributions (i) paid in respect of the Common Shares issued pursuant to the Securities Purchase Agreement or stock issued pursuant to the Contingent Value Rights Agreement or (ii) paid solely in Junior Shares, or options, warrants or rights to subscribe for or purchase Junior Shares), nor shall any Junior Shares be redeemed, purchased or otherwise acquired (other than (i) a redemption, purchase or other acquisition of Common Shares made for purposes of and in compliance with requirements of an employee incentive or benefit plan of the Corporation or any subsidiary or (ii) a purchase or other acquisition of Common Shares made in connection with the restrictions on ownership and transfer set forth in Section 4.07 of the Charter), for any consideration (or any moneys to be paid to or made available for a sinking fund for the redemption of any shares of Common Stock such stock) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Shares), unless in each case the full cumulative dividends on all outstanding Series E Preferred Shares and any dividend period other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the Series A E Preferred Stock, then a Shares and all past dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period periods with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendParity Shares.

Dividends. (a) Holders The holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the receive with respect to each share of Series A Preferred Stock payable semiannuallyStock, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofDirectors, out of funds legally available for the assets payment of dividends, cumulative dividends at a rate per annum equal to two percent (2%) of the Company then effective Liquidation Preference per share, payable in (A) cash, (B) additional shares of Series A Preferred Stock (ADDITIONAL SHARES) or (C) any combination of the foregoing in accordance with the terms of this paragraph 4; provided, however, that dividends must be payable solely in cash unless, with respect to each Dividend Payment Date (as hereinafter defined) on which the Corporation elects to pay all or a portion of the applicable dividend in Additional Shares, the Corporation delivers to the holders a certified resolution of the Board of Directors of the Corporation finding that payment of the dividend solely in cash would materially adversely affect the financial condition of the Corporation; and provided, further, however that the Corporation may not issue Additional Shares in lieu of cash dividends unless sufficient shares of Series A Preferred Stock remain authorized and available for issuance. Such dividends shall be cumulative from the Issue Date regardless of when actually issued (except that dividends on Additional Shares shall accrue from the date such Additional Shares are issued), whether or not in any Dividend Period or Dividend Periods there shall be funds of the Corporation legally available thereforfor the payment of such dividends and whether or not dividends are declared, and shall be payable semiannually commencing on the 180th April 21 of each year (unless such day following the Issue Date (or the following Business Day if any such payment date is not a Business Day, in which event such dividends shall be payable on the next succeeding Business Day) (each such date being referred a DIVIDEND PAYMENT DATE and each such annual period being a DIVIDEND PERIOD). Each such dividend shall be payable to herein the holders of record of shares of the Series A Preferred Stock as a “they appear on the share register of the Corporation on the corresponding Record Date. As used herein, the term RECORD DATE means, with respect to the dividend payable on April 21 of each year, the date 45 days preceding April 21. Accrued and unpaid dividends for any past Dividend Periods may be declared and paid at any time, without reference to any Dividend Payment Date”) at , to holders of record on such record date, not more than 45 days preceding the rate per annum payment date thereof, as may be fixed by the Board of 6% per share Directors. Dividends shall accumulate to the extent that they are not paid on the Liquidation PreferenceDividend Payment Date for the Dividend Period to which they relate. (b) Holders of shares of Series A Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative dividends, as herein provided, on the Series A Preferred Stock. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series A Preferred Stock that may be in arrears; provided that, that if dividends are not paid in the event that full on any Dividend Payment Date, the Company is amount so payable, to the extent not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directorspaid, shall not be paid or payable added to the then effective Liquidation Preference on such Dividend Payment Date and Date. (c) So long as any shares of the Series A Preferred Stock are outstanding, no liability dividend, except as described in the next succeeding sentence, shall be incurred declared or paid or set apart for payment on any Parity Securities, nor shall any Parity Securities be redeemed, purchased or otherwise acquired for any consideration (or moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation, directly or indirectly, (except by conversion into or exchange for Junior Securities) unless in respect each case full cumulative dividends have been or contemporaneously are declared and paid or declared and consideration sufficient for the payment thereof set apart for such payment on the Series A Preferred Stock for all Dividend Periods terminating on or prior to the date of payment of the dividend on such class or series of Parity Securities or the redemption, purchase or other acquisition thereof. When dividends are not paid in full or consideration sufficient for such payment is not set apart, as aforesaid, all dividends declared upon shares of the Series A Preferred Stock and instead, such Deferred Dividend all dividends declared upon any other class or series of Parity Securities shall be declared, become payable declared ratably in proportion to the respective amounts of dividends accumulated and be paid and the liability in respect thereof be incurred unpaid on the first succeeding Dividend Payment Date Series A Preferred Stock and accumulated and unpaid on which such Parity Securities. (d) So long as any shares of the Company is not prohibited from declaringSeries A Preferred Stock are outstanding, paying and incurring the liability no dividends (other than dividends or distributions paid in respect of such Deferred Dividend (andshares of, or to effectuate a stock split on, or options, warrants or rights to subscribe for the avoidance of doubtor purchase shares of, such Deferred Dividend Junior Securities) shall be payable in addition todeclared or paid or set apart for payment or other distribution declared or made upon Junior Securities, and not in lieu ofnor shall any Junior Securities be redeemed, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any purchased or otherwise acquired (other period that is shorter or longer than a full semiannual dividend period will be computed on the basis redemption, purchase or other acquisition of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock made for purposes of an employee incentive or benefit plan of the Corporation or any subsidiary) (any such dividend, distribution, redemption or purchase being hereinafter referred to as a JUNIOR SECURITIES DISTRIBUTION) for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Securities), unless in each case (i) the full cumulative dividends on all outstanding shares of the Series A Preferred Stock and accrued and unpaid dividends on any dividend period other Parity Securities shall have been paid or set apart for payment for all past Dividend Periods with respect to the Series A Preferred Stock, then a Stock and all past dividend periods with respect to such Parity Securities and (ii) sufficient consideration shall be payable in have been paid or set apart for the payment of the dividend for the current Dividend Period with respect of each share of to the Series A Preferred Stock for such period in an amount equal to and the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a current dividend period with respect to a Dividend Payment Date is such Parity Securities. (e) The number of Additional Shares to be issued as dividends in lieu of cash will equal the period commencing on quotient of (X) the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders cash amount of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be that otherwise would have been payable in respect of shares initially issued any Holder who is contractually obligated to appear cash and vote in favor of any proposal made at a meeting of stockholders of (Y) the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendthen effective Liquidation Preference per share.

Dividends. (a) Holders of the then outstanding shares of Series A D Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when and as authorized by the Board of Directors or a duly authorized committee thereofDirectors, out of funds legally available for the assets payment of dividends, cumulative preferential cash dividends at the rate of 7.625% of the Company legally available therefor$25.00 liquidation preference per annum (equivalent to a fixed annual amount of $1.90625 per share). Such dividends shall be cumulative from [ • ], 20211 and shall be payable semiannually commencing quarterly in arrears on the 180th day following the Issue Date (or the following Business Day before January 15, April 15, July 15 and October 15 of each year or, if any such payment date is not a Business Day) business day, the next succeeding business day (each such date being referred to herein as each, a “Dividend Payment Date”) at the rate per annum of 6% per share ). Any dividend payable on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable Series D Preferred Stock for any other period that is shorter or longer than a full semiannual partial dividend period will shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on as they appear in the stock records of the Corporation at the close of business on the applicable record date, which shall be the last day on which of each of March, June, September and December, as the Board of Directors or a duly authorized committee thereof declares case may be, immediately preceding the dividend payable applicable Dividend Payment Date (each, a “Dividend Record Date”). (b) No dividends on shares of Series D Preferred Stock shall be declared by the Corporation or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law. (c) Notwithstanding the foregoing, dividends on the Series D Preferred Stock shall accrue whether or not the terms and provisions set forth in Section 3(b) hereof at any time prohibit the current payment of dividends, whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. Notwithstanding anything Accrued but unpaid dividends on the Series D Preferred Stock shall accumulate as of the Dividend Payment Date on which they first become payable. (d) Except as provided in this Section 3(a3(e) hereof, unless full cumulative dividends on the Series D Preferred Stock have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof is set apart for payment for all past dividend periods and the then current dividend period, no dividends (other than dividends in shares of Common Stock or dividends in shares of any series of Preferred Stock ranking junior to the contrary, Series D Preferred Stock as to dividends and without limiting upon liquidation) shall be declared or paid or set aside for payment nor shall any other remedy distribution be declared or made upon the Common Stock, or any Preferred Stock of the Corporation ranking junior to or on a parity with the Series D Preferred Stock as to dividends or upon liquidation, nor shall any shares of Common Stock, or any shares of Preferred Stock of the Corporation ranking junior to or on a parity with the Series D Preferred Stock as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for other capital stock of the Corporation ranking junior to the Company Series D Preferred Stock as to dividends and upon liquidation and except for transfers made pursuant to the provisions of Article VII of the Charter). (e) When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) on the Series D Preferred Stock and the shares of any other partyseries of Parity Stock, all dividends declared upon the Series D Preferred Stock and the shares of any other series of Parity Stock shall be declared pro rata so that the amount of dividends declared per share of Series D Preferred Stock and the shares of any other series of Parity Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series D Preferred Stock and the shares of any other series of Parity Stock (which shall not accrue include any accrual in respect of unpaid dividends for prior dividend periods if such preferred stock does not have a cumulative dividend) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote dividend payment or payments on Series D Preferred Stock which may be in favor of any proposal made at a meeting of stockholders arrears. 1 To be the last dividend payment date before the Effective Time of the Company in order to effect the Stockholder Approval Merger (or whose transferor Holder was so obligated) provided that if such Holder Effective Time occurs after the dividend record date for a dividend and before the dividend payment date for such dividend, such date shall be the dividend payment date for such dividend). (or such transferor Holder or f) Any dividend payment made on shares of the Affiliates of either) fails so to appear and vote in favor. Any shares issued Series D Preferred Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to such shares which remains payable. Holders of Series D Preferred Stock shall bear not be entitled to any dividend, whether payable in cash, property or stock in excess of full cumulative dividends on the Stockholder Approval LegendSeries D Preferred Stock as described above.

Dividends. (a) Holders of shares of Series A [B] Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, out of funds or property legally available therefor under Delaware law, non-cumulative dividends and distributions, if any, in the amount, kind and manner set forth in Section 5(b). Except as provided in the immediately preceding sentence, in Section 5(b) or in Section 6, Holders shall not be paid entitled to any other dividends or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred distributions on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)Series [B] Preferred Stock. The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect Notwithstanding anything herein to the Series A Preferred Stockcontrary, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) dividends and distributions on the amount otherwise payable in respect of such share of Series A [B] Preferred Stock in accordance with the foregoing paragraph and shall not be cumulative; (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share Holders of Series A [B] Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect shall not be entitled to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which receive any dividends or distributions not declared by the Board of Directors or a duly authorized committee thereof declares of the dividend payable Board of Directors; and (eachiii) no interest, a “Dividend Record Date”). Notwithstanding anything or sum of money in this Section 3(a) to the contrarylieu of interest, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor dividend or distribution not so declared. (b) If the Board of any proposal made at Directors or a meeting of stockholders duly authorized committee of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder Board of Directors declares a dividend, or the Affiliates Corporation otherwise makes any distribution, on all outstanding shares of eitherCommon Stock, of cash, securities (including, without limitation, rights, warrants, options or evidences of indebtedness) fails so to appear or other property or assets (in each case excluding Non-Partial Common Stock Distributions and vote in favor. Any shares issued Reorganization Events) (such a dividend or distribution, a “Common Stock Distribution,” and the cash, securities, property or assets dividended or distributed on the Common Stock pursuant to such Common Stock Distribution, subject to the last sentence of Section 10(c), the “Distributed Property,” and the date such Distributed Property is paid to holders of Common Stock pursuant to such Common Stock Distribution, the “Common Stock Distribution Date,” and the record date for determining the holders of Common Stock entitled to receive such Common Stock Distribution, the “Common Stock Distribution Record Date”), then the Board of Directors or a duly authorized committee of the Board of Directors shall, in accordance with this Section 5(b), declare to be paid, or cause there to be distributed, to the Holders of the Series [B] Preferred Stock, Distributed Property in accordance with this Section 5(b). The date on which such Distributed Property is to be paid to Holders of the Series [B] Preferred Stock on account of such Common Stock Distribution shall bear be the Stockholder Approval LegendCommon Stock Distribution Date, and the kind and amount of Distributed Property to be dividended or distributed per share of Series [B] Preferred Stock shall be the kind and amount of Distributed Property that a holder of a number of shares of Common Stock equal to the Conversion Rate in effect at the close of business on the Common Stock Distribution Record Date for such Common Stock Distribution would have been entitled to receive pursuant to such Common Stock Distribution. The Corporation shall not declare any Common Stock Distribution unless the Corporation has funds legally available to comply, and complies, with this Section 5(b) with respect to such Common Stock Distribution. For avoidance of doubt, no dividend or distribution shall be payable on the Series [B] Preferred Stock pursuant to this Section 5(b) unless there shall occur a Common Stock Distribution. For avoidance of doubt, if (1) in connection with a Reorganization Event, the Board of Directors or a duly authorized committee of the Board of Directors declares a dividend, or the Corporation otherwise makes any distribution, on all outstanding shares of Common Stock and (2) in connection with such Reorganization Event, the Common Stock is converted into or exchanged for, or constitutes solely the right to receive, cash, securities or other property, then (x) such dividend or distribution shall be subject to this Section 5(b) but not to Section 10(d) and (y) such conversion into, exchange for or right to receive cash, securities or other property shall be subject to Section 10(d) but not to this Section 5(b). (c) Dividends or distributions that are payable on Series [B] Preferred Stock on a Common Stock Distribution Date pursuant to Section 5(b) on account of a Common Stock Distribution will be payable to holders of record of Series [B] Preferred Stock as they appear on the stock register of the Corporation at the close of business on the date (each such date, a “Record Date”) that is the Common Stock Distribution Record Date for such Common Stock Distribution. (d) If the Mandatory Conversion Date with respect to any share of Series [B] Preferred Stock is on or prior to a Record Date for a dividend or distribution on the Series [B] Preferred Stock pursuant to Section 5(b), then the Holder of such share of Series [B] Preferred Stock shall not have the right to receive such dividend or distribution. If the Mandatory Conversion Date with respect to any share of Series [B] Preferred Stock is after a Record Date for a dividend or distribution on the Series [B] Preferred Stock pursuant to Section 5(b) but on or prior to the date such dividend or distribution is to be made, then the Holder of such share of Series [B] Preferred Stock at the close of business on such Record Date shall have the right to receive such dividend or distribution notwithstanding such conversion. (e) For purposes of this Certificate of Designations, dividends and distributions will be deemed to have been declared and paid in full on the Series [B] Preferred Stock during a calendar quarter or any other period if there exists no Common Stock Distribution whose Common Stock Distribution Date occurs during such calendar quarter or period, as applicable.

Dividends. (a) Holders The record owner of shares of Series A Preferred Stock each Voting Trust Certificate shall be entitled to cumulative receive his pro rata share of any dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared paid or distributed by the Board Company upon the Shares represented by the Voting Trust Certificates and all other corporate distributions made by the Company in respect of Directors such Voting Shares; provided, however, that, if any such dividend or a duly authorized committee thereof, out distribution includes shares of the assets capital stock of the Company legally available thereforwith voting rights, the certificates representing such shares of stock shall be deposited with the Voting Trustee subject to the terms of this Agreement, and the owner of the Voting Trust Certificate evidencing the Shares upon which such dividend or distribution is made shall be entitled to receive new Voting Trust Certificates representing such newly-deposited shares of capital stock with voting rights. The record date fixed by the Company for the purpose of the payment of any dividend or for the making of any other distribution shall be the record date for the purpose of payment or distribution to the owners of Voting Trust Certificates, and whenever any such record date shall be fixed, the owners of record of Voting Trust Certificates at the date so fixed shall exclusively be entitled to participate in the payment or distribution. Upon receipt by the Voting Trustee of any dividend or other distribution in respect of any Shares held by the Voting Trustee, the Voting Trustee shall promptly distribute the funds or property so received by it to the owners of Voting Trust Certificates to whom such funds or property should have been distributed by the Company if the foregoing provisions hereof had been observed. Notwithstanding the foregoing provisions of this Section 5, if the Company shall reclassify its Shares, reorganize, sell all or substantially all of its assets with or without dissolution, consolidate with or merge into another corporation, or if another corporation shall merge into the Company, the shares of capital stock into which the Shares then on deposit hereunder shall be reclassified and any shares of capital stock issued in exchange or substitution for the Shares then on deposit hereunder shall, if they are non-voting shares, be distributed in accordance with the provisions of this Agreement directly to the record owners of outstanding Voting Trust Certificates, issued in respect of such Shares; or, if they are voting shares, they shall become subject to the terms and conditions of this Agreement as if such voting shares had been originally deposited hereunder, and shall be payable semiannually commencing on deposited with the 180th day following Voting Trustee, and the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum owner of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability outstanding Voting Trust Certificates shall be incurred in respect thereof, and instead, entitled to receive new Voting Trust Certificates representing such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on newly deposited shares of Common Stock in any dividend period capital stock with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendvoting rights.

Dividends. (a) Holders 3.1 The holders of Exchangeable Shares, in priority to the Common Shares, the Second Preferred Shares and any class of shares of Series A Preferred Stock the Corporation ranking junior to the Exchangeable Shares with respect to the payment of dividends, shall be entitled to cumulative dividends receive, and the Corporation shall pay on the Series A Preferred Stock payable semiannuallyeach Exchangeable Share, which dividends shall be if, as and when declared by the Board of Directors or a duly authorized committee thereof, in its sole discretion from time to time out of the money, assets or property of the Company legally available thereforCorporation properly applicable to the payment of dividends, (which may include ARC Energy Units), cumulative preferential cash dividends in an amount per Exchangeable Share as set out in this Section 3.1. The accrued amount of such preferential cumulative dividend with respect to an Exchangeable Share on any date from time to time shall be the Cumulative Dividend Amount Exchange Ratio in effect on the last Business Date prior to such date multiplied by the Current Market Price on the last Business Day prior to such date. Such dividends, whether or not declared, shall accrue and shall be cumulative. 3.2 Cheques of the Corporation payable semiannually commencing on at par at any branch of the 180th day following bankers of the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability Corporation shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability issued in respect of any cash dividends by the sending of such Deferred Dividend (anda cheque to each holder of an Exchangeable Share, for which shall satisfy the avoidance cash dividend represented thereby unless the cheque is not paid on presentation. Certificates registered in the name of doubt, such Deferred Dividend the registered holder of Exchangeable Shares shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter issued or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable transferred in respect of any stock dividends by the sending of such a certificate to each share holder of Series A Preferred Stock for such period in an Exchangeable Share, which shall satisfy the stock dividend represented thereby. Such other type and amount equal to the greater of (i) the amount otherwise payable property in respect of such share of Series A Preferred Stock in accordance with any dividends shall be issued, distributed or transferred by the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock Corporation in such manner as it shall determine and the issuance, distribution or transfer thereof by the Corporation to each holder of an Exchangeable Share shall satisfy the dividend represented thereby. No holder of an Exchangeable Share shall be entitled to recover by action or other legal process against the Corporation any dividend that is represented by a cheque that has not been duly presented to the Corporation’s bankers for payment or that otherwise remains unclaimed for a period times (B) of six years from the number of shares of Common Stock into date on which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date was payable. 3.3 The record date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything ) for the determination of the holders of Exchangeable Shares entitled to receive payment of, and the payment date for, any dividend declared on the Exchangeable Shares under Section 3.1 of these share provisions and whether any such dividend is in this fact declared shall be determined in the sole discretion of the Board of Directors. 3.4 If on any payment date for any dividends declared on the Exchangeable Shares under Section 3(a) 3.1 of these share provisions the dividends are not paid in full on all of the Exchangeable Shares then outstanding, any such dividends that remain unpaid shall be paid on a subsequent date or dates determined by the Board of Directors on which the Corporation shall have sufficient moneys, assets or property properly applicable to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect payment of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividends.

Dividends. (a) Holders Lincoln shall be entitled to receive, when, as and if authorized by the Board of shares Directors and declared by the Company out of funds legally available therefor, cumulative cash dividends (“Dividends”) on each share of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on Dividend Rate multiplied by the Liquidation Preference; provided that, in as determined on the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in with respect thereofto such Dividend, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)divided by four. The Dividend amount of dividends payable for any period other period that is shorter or longer than a full semiannual dividend period will Dividend Period shall be appropriately prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following To the Meeting End Dateextent that the Company does not, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the any shares of Series A Preferred Stock, then pay the Dividend for a particular Dividend Period in cash in full on the applicable Dividend Payment Date, the amount of such Dividend not paid, whether or not declared, shall be added to the Liquidation Preference of such shares in accordance with the definition thereof and shall compound on each subsequent Dividend Payment Date at the applicable Dividend Rate (i.e., Dividends shall accrue on such unpaid Dividends until paid in full). The Company shall not (and shall not permit its Subsidiaries to), directly or indirectly, declare or pay dividends or distributions with respect to, or redeem, purchase or acquire any of, its Common Stock or other Junior Securities or Qualifying Future Parity Stock (other than, in the case of Common Stock, a stock split, spin-off, the declaration or payment of a stock dividend or a deemed repurchase relating to tax withholding in connection with vesting of equity compensation) unless all Dividends payable pursuant to this Section 4(a) on all shares of Series A Preferred Stock, including for the last completed Dividend Period, have been declared and paid in cash in full and all amounts required to be paid by the Company to redeem the Series A Preferred Stock pursuant to Section 8, if applicable, have been paid to Lincoln in cash in full; provided that the Company shall be able to declare or pay dividends with respect to, or redeem, purchase or acquire any of, its Common Stock or other Junior Securities or Qualifying Future Parity Stock upon payment in cash in full (including all accumulated Dividends as of the immediately preceding Dividend Payment Date) of all such Dividends and amounts payable pursuant to this Section 4(a) and Section 8, if applicable. (b) Dividends shall accrue from the Date of First Issuance, whether or not the Company has funds legally available therefor or such Dividends are declared. Each Dividend shall be payable in respect of arrears on each share Dividend Payment Date. Dividends on shares of Series A Preferred Stock for shall cease to accrue upon any liquidation, redemption, repurchase or conversion of such period in an amount equal shares pursuant to the greater of terms hereof. (ic) the amount otherwise payable in respect of such share of The Series A Preferred Stock shall not be entitled to participate in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate any cash dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect that may from time to a Dividend Payment Date is the period commencing time be paid on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCommon Stock.

Dividends. Holdings shall not, and shall not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to Holdings or any of its Subsidiaries, except that: (i) any Subsidiary of Holdings may pay Dividends to its parent company (including Holdings) and any Subsidiary of Holdings; (ii) during the Forbearance Period, Holdings may pay Dividends of up to $5,000,000 in the aggregate; provided, however, that if an Event of Default has occurred and is continuing at the time of such payment, then Holdings shall not be permitted to pay any Dividends; (iii) after termination of the Forbearance Period, additional Dividends if, at the time of and after giving effect to such Dividends, no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Dividends and if the Leverage Ratio for Holdings, for the date on which such Dividends are paid and after giving pro forma effect thereto as if such Dividends had been paid at the beginning of the applicable Reference Period, would not have been greater than 3.0 to 1.0, and such Dividends, together with the aggregate amount of all other Dividends made by Holdings and its Subsidiaries (including the Borrower) (excluding Dividends permitted by subclauses (b), (c), (d) and (e) of clause (iv) below) with respect to the quarter for which such Dividend is paid, is less than the sum, without duplication, of: (a) Holders 50% of shares the Consolidated Net Income of Series A Preferred Holdings for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Senior Notes Indenture to the end of the most recently ended Reference Period (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds received by Holdings since the date of the Senior Notes Indenture (x) as a contribution to its common equity capital in respect of Equity Interests of Holdings (other than Disqualified Stock) or (y) from the issue or sale of Equity Interests of Holdings (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock shall or convertible or exchangeable debt securities of Holdings that have been converted into or exchanged for such Equity Interests (other than, in the case of clause (x) or (y), Equity Interests (or Disqualified Stock or debt securities) sold to (or in respect of which a capital contribution is received from) a Subsidiary of Holdings); and (iv) after termination of the Forbearance Period, so long as no Default has occurred and is continuing or would be entitled caused thereby, the preceding provisions will not prohibit: (a) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend, distribution or redemption payment would have complied with the provisions of this Agreement; (b) the payment of any Dividend in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to cumulative a Subsidiary of Holdings) of, Equity Interests of Holdings (other than Disqualified Stock) or from the net cash proceeds of the substantially concurrent contribution of common equity capital to Holdings in respect of Equity Interests of Holdings (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (b) of Section 10.03(iii); (c) the payment of any Dividend by a Subsidiary of Holdings (including the Borrower) to the holders of its Equity Interests on a pro rata basis; (d) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of Holdings or any Subsidiary of Holdings (including the Company) issued on or after the date of the Senior Notes Indenture in accordance with the Leverage Ratio test set forth in the first paragraph of Section 4.07 of the Senior Notes Indenture (as in effect on the Series A Preferred Stock payable semiannuallyThird Amendment Effective Date and without giving effect to any further amendment, modification, supplement or waiver thereto); (e) the payment of any Dividend to the Parent (through the Intermediate Obligors), which dividends shall together with the amount of loans to the Parent in the form of Intercompany Internal Debt owing by Parent not to exceed in the aggregate the amount of (x) any guarantee refunds received by the Borrower, Holdings or a Subsidiary Guarantor after the date of the Senior Notes Indenture in respect of an Existing Option Construction Contract in respect of any Option Vessel upon termination of such Existing Option Construction Contract, (y) the Net Available Cash received after the date of the Senior Notes Indenture from the sale of any Discontinued Vessel, or (z) the Net Available Cash received after the date of the Senior Notes Indenture (after reserves for contingencies) from the sale of, or of the Equity Interests of a Subsidiary that is not a Guarantor owning, any Option Vessel to the extent (and only to the extent) such Net Available Cash has been received by, or paid in cash as a dividend or distribution by a Subsidiary to, Holdings, the Borrower or a Subsidiary Guarantor within 60 days after the consummation of such sale, provided that, in the case of clause (x), (y) or (z), the payment of such dividend, or making of such loan, to Parent is effected within 60 days after the receipt by the Borrower, Holdings or a Subsidiary Guarantor of the refunds or Net Available Cash specified in clause (x), (y) or (z); and (f) other Dividends in an aggregate amount not to exceed $5,000,000 since the date of the Senior Notes Indenture. The amount of all Dividends (other than cash) will be declared the Fair Market Value on the date of the Dividends of the asset(s) or securities proposed to be transferred or issued by Holdings or such Subsidiary (including the Borrower), as the case may be, pursuant to the Dividends. The Fair Market Value of any assets or securities that are required to be valued by this Section 10.03 will be determined by the Board of Directors or a duly authorized committee thereof, out of the assets Borrower in a board resolution with respect thereto, a copy of which will be delivered to the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Administrative Agent. The Board of Directors’ determination must be based upon an opinion or appraisal issued by an accounting, shall not be paid appraisal or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and investment banking firm of industry recognized standing if the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendFair Market Value exceeds $10,000,000.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is The Borrower will not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such any dividend (other than dividends payable solely in stock of the Borrower) on any class of its stock or incur such liability either (x) as a matter make any payment on account of law the purchase, redemption or (y) under the terms other retirement of any loan agreement, credit agreement, guaranty, shares of such stock or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred make any distribution in respect thereof, and insteadeither directly or indirectly, except that the foregoing shall not prohibit: (a) Any payment expressly permitted under Section 6.7. (b) The payment of any dividend within 60 days after the date of declaration of such Deferred Dividend shall be declared, become payable and be paid and dividend if the liability in respect thereof be incurred dividend would have been permitted on the first succeeding Dividend Payment Date on which date of declaration. (c) So long as no Default or Event of Default has occurred and is continuing, the Company is not prohibited from declaringdistribution of any stock of the Borrower either (i) solely in exchange for equity interests of the Borrower, paying and incurring or (ii) through the liability in respect application of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis net proceeds of a 360-day year consisting substantially concurrent sale for cash (other than to a Subsidiary of twelve 30-day months. Commencing the Borrower) of stock of the Borrower. (d) So long as no Default or Event of Default has occurred and is continuing, payments by the Borrower to redeem or repurchase, or to enable Holdings to redeem or repurchase, stock of Holdings or the Borrower issued to or on behalf of directors, officers and following employees of the Meeting End Date, in Borrower pursuant to any policy of the event that dividends are paid on shares of Common Stock in any dividend period Borrower with respect to directors, officers and employees of the Series A Preferred StockBorrower who have died or become disabled, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal or whose employment or other relationship with the Borrower has been terminated, or pursuant to the greater terms of employment contracts, other agreements or employee stock option or stock benefit plans of Holdings or the Borrower; provided, however, that the aggregate amount paid under this paragraph (d) after the date hereof shall not as of any date exceed the sum of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph $1,000,000, and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times $1,000,000, and (B) the number of shares full calendar years ending on or after December 31, 1998 and before the date of Common Stock into which such share determination. (e) Payments by the Borrower to Holdings on account of Series A Preferred Stock is then convertible. For purposes operating and administrative expenses of this Section 3(a)Holdings, a dividend period including but not limited to directors' fees and expenses, legal and audit expenses, and corporate franchise and other taxes, so long as the aggregate amount so paid in any single calendar year does not exceed $500,000. (f) Payments made or to be made in connection with respect the Recapitalization or to a Dividend Payment Date is Holdings to enable Holdings to make such payments, so long as the period commencing on aggregate amount of such payments does not exceed $19,000,000. (g) Payments to Holdings in an amount not in excess of, and for the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Datepurpose of enabling Holdings' payment of, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders then-current tax liability of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable Holdings in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders the taxable income of the Company in order Borrower imputed to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendHoldings.

Dividends. (a) Holders All cash and non-cash proceeds of shares of Series A Preferred Stock the Collateral, including, without limitation, any dividends, interest and other distributions on the Collateral, received by Secured Party or the Custodian shall be entitled credited to cumulative the Collateral Account. For the avoidance of doubt, as described in Section 3(a), any and all amounts paid or credited to the Collateral Account (including with respect to dividends or distributions) shall be net of any Taxes required to be withheld, including Taxes withheld under 871(m) of the U.S. Internal Revenue Code or similar or analogous provisions under any tax law of an applicable jurisdiction. All cash and non-cash proceeds of the Collateral, including, without limitation, any dividends, interest and other distributions on the Series A Preferred Stock payable semiannuallyCollateral, which dividends received by Grantor shall be declared by received in trust for the Board benefit of Directors Secured Party, shall be segregated from other property of Grantor and shall immediately be delivered over to the Custodian to be credited to the Collateral Account to be held as Collateral in the same form as received or in such other manner as Secured Party may instruct (with any necessary endorsement). Unless an Event of Default with respect to Grantor as the Defaulting Party or a duly authorized committee thereofTermination Event with respect to Grantor as sole Affected Party has occurred and is continuing or an Early Termination Date has been designated, out Secured Party shall pay over, or cause to be paid over, to Grantor any Manufactured Dividend (defined below), but solely to the extent the amount of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if such Manufactured Dividend exceeds any such payment date is not a Business Day) (each such date being referred to herein as a “corresponding Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) obligation under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend Confirmation (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, the parties’ obligations to make any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for or pay any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period Manufactured Dividend amounts with respect to the Series A Preferred Stock, then a dividend same Cash Dividend (defined in the Master Confirmation) shall be payable netted against one another, such that only the party with the greater payment obligation shall make payment of such excess amount). “Manufactured Dividend” shall mean the amount of any cash dividend or distribution made in respect of each share of Series A Preferred Stock for such period in an amount equal the Shares that have been Rehypothecated, after netting any applicable withholding taxes that would apply to the greater of (i) such dividend or distribution received by Secured Party from the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph Issuer and (ii) the product further payment of (A) the aggregate dividends payable per share of Common Stock in amount representing such dividend period times or distribution (Bafter netting any withholding taxes in (i)) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect by Secured Party to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendGrantor.

Dividends. (ai) Holders The Holder shall be entitled to receive, out of shares funds legally available for the payment of dividends, dividends at the Dividend Rate on the Stated Value of each share of Series A I Preferred Stock on and as of each Dividend Payment Due Date with respect to each Dividend Period; provided, however, that if any dividend is not paid in full on any Dividend Payment Due Date, dividends shall thereafter accrue and be payable at the Default Dividend Rate on the Stated Value of each share of Series I Preferred Stock until all accrued dividends are paid in full. Dividends on the Series I Preferred Stock shall be entitled to cumulative dividends from the date of issue, whether or not declared for any reason, including if such declaration is prohibited under any outstanding indebtedness or borrowings of the Corporation or any of its Subsidiaries, or any other contractual provision binding on the Series A Preferred Stock payable semiannuallyCorporation or any of its Subsidiaries, which dividends and whether or not there shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company funds legally available therefor, and for the payment thereof. (ii) Each dividend shall be payable semiannually in equal quarterly amounts on each Dividend Payment Due Date, commencing May 15, 2005, to the Holders of record of shares of the Series I Preferred Stock, as they appear on the 180th day following stock records of the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) Corporation at the rate per annum close of 6% per share business on such record date, not more than 60 days or less than 10 days preceding the Liquidation Preference; provided thatpayment dates thereof, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared fixed by the Board of Directors; provided, however, until February 14, 2006, dividends shall accrue but shall not be payable until February 15, 2006. Accrued and unpaid dividends for any past Dividend Period may be declared and paid or payable on such at any time, without reference to any Dividend Payment Date and no liability shall be incurred in respect Due Date, to Holders of record, not more than 15 days preceding the payment date thereof, and instead, such Deferred Dividend shall as may be declared, become payable and be paid and fixed by the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect Board of such Deferred Dividend Directors. (and, for the avoidance of doubt, such Deferred Dividend iii) Dividends due hereunder shall be payable in addition tocash; provided, however, that at the option of the Corporation, such dividends shall be paid either (x) in cash or (y) through the issuance of duly and validly authorized and issued, fully paid and nonassessable, freely tradable shares of the Common Stock valued at the Market Price and registered for resale in the open market transactions on the Registration Statement (as defined in the Registration Rights Agreement), which Registration Statement shall then be effective under the Securities Act; provided, further, that if no funds are legally available for the payment of cash dividends on the Series I Preferred Stock, dividends shall be paid as provided in clause (y) above. (b) Except as provided in Section 4(d) hereof, the Holder shall not be entitled to any dividends in lieu ofexcess of the cumulative dividends, as herein provided, on the Series I Preferred Stock. (c) So long as any dividend which would ordinarily shares of the Series I Preferred Stock are outstanding, no dividends shall be payable on such succeeding Dividend Payment Date). The amount of dividends payable declared or paid or set apart for payment or other distribution declared or made upon any Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired (other period that is shorter or longer than a full semiannual dividend period will be computed on the basis redemption, purchase or other acquisition of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock made for purposes of an employee incentive or benefit plan (including a stock option plan) of the Corporation or any Subsidiary) for any consideration by the Corporation, directly or indirectly, nor shall any moneys be paid to or made available for a sinking fund for the redemption of any shares of any Junior Securities, unless in any dividend period each case (i) the full cumulative dividends required to be paid in cash on all outstanding shares of the Series I Preferred Stock shall have been paid or set apart for payment for all past Dividend Periods with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A I Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) sufficient funds shall have been paid or set apart for the product payment of the dividend for the current Dividend Period with respect to the Series I Preferred Stock. (Ad) If the aggregate dividends payable per share Corporation shall at any time or from time to time after the Issue Date declare, order, pay or make a dividend or other distribution (including, without limitation, any distribution of stock or other securities or property or rights or warrants to subscribe for securities of the Corporation or any of its Subsidiaries by way of dividend or spin-off) on shares of its Common Stock, then, and in each such case, in addition to the dividend obligation of the Corporation specified in Section 4(a) hereof, the Corporation shall declare, order, pay and make the same dividend or distribution to each Holder of Series I Preferred Stock in such dividend period times (B) as would have been made with respect to the number of shares Common Shares the Holder would have received had it converted all of Common Stock into which such share of its Series A I Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendShares.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled If and to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by extent that during such time as the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (Aggregate Indemnity Escrow Shares or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, Aggregate First Tranche Shares are held in the event that on any Dividend Payment Date, the Company is not permitted Escrow Account pursuant to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) this Agreement Purchaser shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date declare and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of distribute dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stockshares of its common stock, then the Purchaser shall deposit in the Escrow Account the amount of such dividends allocable to such Aggregate Indemnity Escrow Shares or Aggregate First Tranche Shares, as applicable. Any dividends so deposited in the Escrow Account, together with any interest earned thereon, with respect to the Aggregate Indemnity Escrow Shares shall first be released from the Escrow Account and applied to satisfy any indemnification obligations of a dividend Securityholder, pursuant to Article IX of the Merger Agreement and Section 3 of this Agreement, with any balance of any such indemnification obligations next being satisfied in accordance with Section 3 hereof either through the release to the Purchaser Indemnified Person of the Securityholder's Pro Rata Share of Aggregate Indemnity Shares or the exercise of his Cash Payment Option. If and to the extent that a Securityholder's Pro Rata Share of any such dividends so deposited in the Escrow Account with respect to the Aggregate Indemnity Escrow Shares, together with any interest earned thereon, exceeds the amount of such Securityholder's indemnification obligations under Article IX of the Merger Agreement and Section 3 hereof, the Securityholder's Pro Rata Share (as determined under Exhibit A) of any such dividends and interest earned thereon shall be payable released and distributed from the Escrow Account to such Securityholder at such time as his Pro Rata Share of the Aggregate Indemnity Escrow Shares would be fully released to him under Section 3 hereof. Any dividends so deposited in the Escrow Account, together with any interest thereon, with respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of Aggregate First Tranche Shares shall be released and distributed either to the Securityholders or Purchaser (ias the case may be) at such time as the amount otherwise payable Aggregate First Tranche Shares are to be distributed and released in respect of such share of Series A Preferred Stock accordance with Section 4(a) or Section 4(b) hereof, respectively. If and to the extent that dividends are declared and deposited by Purchaser in the Escrow Account in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes provisions of this Section 3(a2(b), a dividend period the Securityholders shall include their Pro Rata Share of such dividends in income for federal, state and local income tax purposes, provided that either Purchaser or Escrow Agent timely provide such Securityholders with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date copies of Internal Revenue Service (or, if there is no preceding Dividend Payment Date, the Issue Date"IRS") and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day Forms 1099 on which is reported their allocable share of such dividend income. In addition, such Securityholders shall include in income for federal, state and local income tax purposes any interest earned on such dividends while held in the Board of Directors or a duly authorized committee thereof declares Escrow Account, provided that the dividend payable (eachEscrow Agent shall timely provide such Securityholders with IRS Forms 1099, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who on which is contractually obligated to appear and vote in favor reported their allocable share of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendinterest income.

Dividends. (a) Holders As of shares January 1, 2006, the holders of Series A C Preferred Stock shall be entitled to receive cumulative dividends ("Cumulative Dividends") which shall accrue on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the daily basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater Dividend Rate (this and certain other capitalized terms used herein have the respective meanings given in Section 9 hereof) multiplied by the Liquidation Preference per share of Series C Preferred Stock. Cumulative Dividends shall be payable quarterly in arrears on March 31, June 30, September 30 and December 31 of each year (each of such dates being a "Dividend Payment Date") and shall be paid in cash out of funds legally available therefor. To the extent accrued and unpaid Cumulative Dividends are not paid on the applicable Dividend Payment Date, such unpaid Cumulative Dividends shall be increased on a daily basis by an amount equal to (i) the amount otherwise payable in respect sum of such share of Series A Preferred Stock in accordance with the foregoing paragraph and Dividend Rate plus one percent (1%) multiplied by (ii) the product amount of such unpaid Cumulative Dividends (A) a "Dividend Increase"). Each such daily Dividend Increase shall be compounded on each subsequent Dividend Payment Date by increasing all Cumulative Dividends which were not paid as of the end of the day of such subsequent Dividend Payment Date by the aggregate dividends payable per share of Common Stock all Dividend Increases which have not previously been so compounded (so that the accrued and unpaid Cumulative Dividends shall include the amount of such Dividends Increases), and thereafter such increased Cumulative Dividends shall further increase daily as set forth in such dividend period times (B) the previous sentence. Any calculation of the amount of Cumulative Dividends accrued shall be made based on a 365-day year and on the number of shares days actually elapsed during the applicable calendar quarter. Any payments by the Company of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(aCumulative Dividends shall be applied to first pay any all accrued and unpaid Dividend Increases (to the extent not compounded as Cumulative Dividends), a dividend period with respect to a Dividend Payment Date is then shall pay all accrued and unpaid Cumulative Dividends which had accrued and were unpaid as of the period commencing on the preceding Dividend Payment Date (or, if there is no preceding most recent Dividend Payment Date, and then shall pay any remaining Cumulative Dividends. In addition to the Issue Daterestrictions on dividends set forth in Section 7(c)(iii), the Company shall not declare or pay any dividends on or with respect to any series or class of stock other than Series C Preferred Stock unless all accrued and unpaid Cumulative Dividends which had accrued and were unpaid as of the most recent Dividend Payment Date and all accrued and unpaid Dividend Increases (to the extent not compounded as Cumulative Dividends) have been declared and ending paid by the Company. (b) In the event any dividends are declared or paid or any other distribution is made on or with respect to the Common Stock, the holders of the Series C Preferred Stock as of the record date established by the Board of Directors for such dividend or distribution on the day Common Stock shall be entitled to receive dividends ("Participating Dividends") per share of Series C Preferred Stock, in an amount (whether in the form of cash, securities or other property) determined by multiplying (i) the Liquidation Preference per share of Series C Preferred Stock plus the amount of any declared or accrued but unpaid Dividends thereon as of the record date of such Participating Dividend by (ii) the Applicable Rate. Such Participating Dividends shall be payable to the holders of the Series C Preferred Stock as of the date immediately prior to the next Dividend Payment Date. Dividends record date for such dividend or distribution on the Common Stock, which date shall be the record date for the Participating Dividends, and such dividends are to be payable on a Dividend Payment Date shall be payable the same payment date established by the Board of Directors for the payment of such dividend or distribution on the Common Stock to Holders of record on the persons in whose name the Series C Preferred Stock is registered at the close of business on the day applicable record date. (c) No dividend shall be paid or declared on which any share of Common Stock, unless a dividend, payable in the Board same consideration and manner, is simultaneously paid or declared, as the case may be, on each share of Directors Series C Preferred Stock in an amount determined as set forth above. For purposes hereof, the term "dividends" shall include any pro rata distribution by the Company of cash, property, securities (including, but not limited to, rights, warrants or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(aoptions) or other property or assets to the contraryholders of the Common Stock, and without limiting whether or not paid out of capital, surplus or earnings. (d) Prior to declaring any other remedy available dividend or making any distribution on or with respect to shares of Common Stock, the Company or shall take all prior corporate action necessary to authorize the issuance of any other party, dividends shall not accrue or be securities payable as a dividend in respect of the Series C Preferred Stock. (e) The terms "declared dividends" and "dividends declared" or any similar reference to "declared but unpaid Dividends," whenever used in this Resolution with reference to shares initially issued any Holder who is contractually obligated of Series C Preferred Stock shall be deemed to appear and vote include dividends required by Section 2(c) hereof to be declared, whether or not the same have in favor of any proposal made fact been declared at a meeting of stockholders the time in question. (f) No dividend may be declared or paid in respect of the Company shares of Series C Preferred Stock, except to the extent permitted by and in order to effect accordance with the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or terms and conditions of the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendWorking Capital Facility Documents.

Dividends. (a) Holders The holders of shares of Series A C Preferred Stock shall not be entitled to cumulative receive dividends on the Series A C Preferred Stock payable semiannuallyStock. (b) From and after the time, which if any, that the Corporation fails to pay to the holder of any shares of Series C Preferred Stock, on the date specified for redemption in accordance with Section 5, Section 6 or Section 7 hereof or on the date specified for repurchase in accordance with Section 10, the redemption price calculated pursuant to Section 5, the Change of Control Price (as defined below) or the Material Asset Sale Price (as defined below) after such holder has delivered notice to the Corporation pursuant Section 10 of its intention to exercise its repurchase rights under Section 10, if applicable, then (i) no dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (paid or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guarantyset apart for payment, or related agreementother distribution declared or made, such dividend upon any Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis redemption, purchase or other acquisition of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock expressly required and made for purposes of any employee incentive or benefit plans or arrangements of the Corporation or any subsidiary of the Corporation or the payment of cash in lieu of fractional shares in connection therewith) for any dividend period with respect consideration (nor shall any moneys be paid to or made available for a sinking fund for the Series A Preferred Stockredemption of any shares of any such Junior Securities) by the Corporation, then a dividend shall be payable directly or indirectly (except by conversion into or exchange for Junior Securities or the payment of cash in respect lieu of each share of Series A Preferred Stock for such period fractional shares in an amount equal to the greater of (iconnection therewith) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product Corporation shall not, directly or indirectly, make any payment on account of any purchase, redemption, retirement or other acquisition of any Parity Securities (other than for consideration payable solely in Junior Securities or the payment of cash in lieu of fractional shares in connection therewith); provided, however, that this Section 3(b) shall not be applicable at any time that (A) the aggregate dividends Corporation has irrevocably paid, in accordance with Section 5 or Section 7, the entire redemption price payable per share to each holder of Common Stock in such dividend period times Series C Preferred Stock, (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Corporation has irrevocably paid, in accordance with Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date6, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be Change of Control Price payable to Holders of record on each holder or (C) the close of business on Corporation has irrevocably paid, in accordance with Section 10, the day on which the Board of Directors or a duly authorized committee thereof declares the dividend Material Asset Sale Price payable (each, a “Dividend Record Date”). Notwithstanding anything in this to each holder that has exercised its repurchase right pursuant to Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend10.

Dividends. (a) The Holders as of shares of Series A Preferred Stock 12:00 noon, New York City time, on the applicable Dividend Payment Date, shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofTrustees, out of the assets of the Company funds legally available therefor, cumulative dividends, at the Applicable Dividend Rate. Dividends on the shares of RP so declared and payable shall be paid (i) in preference to and in priority over any dividends declared and payable on the Common Shares, and (ii) to the extent permitted under the Code and to the extent available and in preference to and priority over any dividends declared and payable on the Common Shares, out of tax-exempt income earned on the Trust's investments, subject to the application of the alternative minimum tax provisions of the Code. Dividends on shares of RP will be designated as exempt-interest dividends up to the amount of net tax-exempt income of the Trust for purposes of Section 852 of the Code. (b) Dividends on each share of RP shall accumulate from its Date of Original Issue and will be payable, when, as and if declared by the Board of Trustees, on each Dividend Payment Date applicable to such share of RP. (c) Each declared dividend shall be payable semiannually commencing on the 180th day following applicable Dividend Payment Date to the Issue Holder or Holders of such shares of RP as set forth in paragraph 3(a). Dividends on any share of RP in arrears with respect to any past Dividend Payment Date (or the following Business Day if may be declared and paid at any such payment date is not a Business Day) (each such date being referred time, without reference to herein as a “any regular Dividend Payment Date”, to the Holder of such share as of a date not exceeding five Business Days preceding the date of payment thereof as may be fixed by the Board of Trustees. Any dividend payment made on any share of RP shall be first credited against the dividends accumulated but unpaid (whether or not earned or declared) at with respect to the earliest Dividend Payment Date on which dividends were not paid. (d) Neither Holders nor Beneficial Owners of shares of RP shall be entitled to any dividends on the shares of RP, whether payable in cash, property or stock, in excess of full cumulative dividends thereon, except as set forth in paragraph 3(k) of this Part I. Except as provided in paragraph 3(h) of this Part I, neither Holders nor Beneficial Owners of shares of RP shall be entitled to any interest, or other additional amount, on any dividend payment on any share of RP which may be in arrears. (e) Except as otherwise provided herein, the Applicable Dividend Rate on each share of RP for each Dividend Period with respect to such share shall be equal to the rate per annum that results from implementation of 6% per the remarketing procedures described in Part II hereof. (f) The amount of declared dividends for each share of RP payable on each Dividend Payment Date shall be computed by the Trust by multiplying the Applicable Dividend Rate in effect with respect to dividends payable on such share on such Dividend Payment Date by a fraction the Liquidation Preference; provided thatnumerator of which shall be the number of days such share was outstanding from and including its Date of Original Issue or the preceding Dividend Payment Date, in as the event that case may be, to and including the last day of such Dividend Period, and the denominator of which shall be 365, and then multiplying the percentage so obtained by $100,000. (g) No later than by 12:00 noon, New York City time, on any each Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under Trust shall deposit in same-day funds with the terms Paying Agent the full amount of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or and payable on such Dividend Payment Date and no liability on any share of RP. (h) The Applicable Dividend Rate for each Dividend Period commencing during a Non-Payment Period shall be incurred equal to the Non-Payment Period Rate; any share of RP for which a Special Dividend Period would otherwise have commenced on the first day of a Non-Payment Period shall have a 28-day Dividend Period (in respect thereofthe case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP); and each Dividend Period for shares of RP commencing after the first day of, and insteadduring, a Non-Payment Period shall be a 28-day Dividend Period (in the case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP). Any amount of any dividend due on any Dividend Payment Date for any shares of RP (if, prior to 12:00 noon, New York City time, on such Dividend Payment Date, the Trust has declared such dividend payable on or within three Business Days after such Dividend Payment Date to the Holders of such shares of RP as of 12:00 noon, New York City time, on the Business Day preceding such Dividend Payment Date) or redemption price with respect to any shares of RP not paid to such Holders when due but paid to such Holders in the same form of funds by 12:00 noon, New York City time, on any of the first three Business Days after such Dividend Payment Date or due date, as the case may be, shall incur a late charge to be paid therewith to such Holders and calculated for such period of non-payment at the Non-Payment Period Rate applied to the amount of such non-payment based on the actual number of days comprising such period divided by 365. For the purposes of the foregoing and paragraphs 3(g) and -4(g) of this Part I, payment to a person in same-day funds on any Business Day at any time shall be considered equivalent to payment to such person in New York Clearing House (next-day) funds at the same time on the preceding Business Day, and any payment made after 12:00 noon, New York City time, on any Business Day shall be considered to have been made instead in the same form of funds and to the same person before 12:00 noon, New York City time, on the next Business Day. (i) Except during a Non-Payment Period, by 1:00 p.m. on the Tender Date in the Remarketing at the end of the Initial Dividend Period applicable to a share of RP, and by 1:00 p.m. on the Tender Date in the Remarketing at the end of each subsequent Dividend Period applicable to a share of RP, the Beneficial Owner of such share of RP may elect to tender such share or hold such share for the next Dividend Period. If the Beneficial Owner of such share of RP elects to hold such share, such Deferred Beneficial Owner shall hold such share of RP for a 28-day Dividend Period (in the case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP) or a Special Dividend Period if the succeeding Dividend Period with respect to such share has been designated by the Board of Trustees as a Special Dividend Period provided that, if (i) there are no Remarketing Agents, (ii) the Remarketing Agents are not required to conduct a Remarketing or (iii) the Remarketing Agents are unable to remarket in the Remarketing on the Dividend Reset Date following such Tender Date all shares of RP tendered (or deemed tendered) to them at a price of $100,000 per share, then the next Dividend Period for all shares of RP shall be declared, become payable a 28-day Dividend Period (in the case of Series A and be paid B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP) and the liability Applicable Dividend Rate therefor shall be the applicable Maximum Dividend Rate. If the Beneficial Owner of such share of RP fails to elect to tender or hold such share by 1:00 p.m. on such Tender Date, such Beneficial Owner shall continue to hold such share at the Applicable Dividend Rate determined in such Remarketing for a Dividend Period of the same type as the current Dividend Period for such share; provided that, (i) if there are no Remarketing Agents, the Remarketing Agents are not required to conduct a Remarketing or the Remarketing Agents are unable to remarket in the Remarketing on the Dividend Reset Date following such Tender Date all shares of RP tendered (or deemed tendered) to them at a price of $100,000 per share, then the next Dividend Period for all shares of RP shall be a 28-day Dividend Period (in the case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP) and the Applicable Dividend Rate therefor shall be the Maximum Applicable Rate for a 28-day Dividend Period or a 7-day Dividend Period, as the case may be and (ii) if such current Dividend Period is a Special Dividend Period or the succeeding Dividend Period has been designated by the Board of Trustees as a Special Dividend Period, then such Beneficial Owner is deemed to have elected to tender the shares. If the Remarketing Agents are unable to remarket in such Remarketing all shares of RP subject to such Remarketing and tendered (or deemed tendered) to them at a price of $100,000 per share, the Beneficial Owners thereof shall hold such share at the applicable Maximum Dividend Rate for 28-day Dividend Period (in the case of 7 Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP). If a share of RP is tendered (or deemed tendered) and purchased in a Remarketing, the next Dividend Period for such share shall be a 28-day Dividend Period (in the case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series c shares of RP) or a Special Dividend Period with respect to such share, as the case may be, at the Applicable Dividend Rate therefor, except that, if the Remarketing Agents are unable to remarket in such Remarketing all shares of RP tendered (or deemed tendered) to them at a price of $100,000 per share, no purchaser in such Remarketing shall be permitted to acquire shares having a Special Dividend Period and the next Dividend Period for such share shall be a 28-day Dividend Period (in the case of Series A and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP) and the Applicable Dividend Rate therefor shall be the applicable Maximum Dividend Rate. (j) The Board of Trustees may at any time designate a subsequent Dividend Period as a Special Dividend Period with such number of days as the Board of Trustees shall specify; provided that (i) such number of days to be specified as a Special Dividend Period shall be a multiple of 28 (in the case of Series A and B shares of RP) or a multiple of 7 (in the case of Series C shares of RP) and the number of days so specified must be such that the starting date and the ending date for a Special Dividend Period or any subsequent Dividend Periods for a Series shall not be the same as the starting date and the ending date for any other Dividend Periods for any other Series; (ii) written notice of any such designation, of the Maximum Dividend Rate, and Specified Redemption Provisions, if any, in respect thereof and of the consequences of failure to tender or to elect to hold shares, must be incurred on given at least seven days prior to such Tender Date to the first succeeding Remarketing Agents, the Paying Agent, the Securities Depository and the Beneficial Owners of shares of RP which are to be subject to such Special Dividend Period; (iii) no Special Dividend Period may commence for any share of RP during a Non-Payment Date on which Period or if the Company Trust fails to maintain either the RP Basic Maintenance Amount or the 1940 Act RP Asset Coverage and such failure is not prohibited from declaringcured; (iv) if such Special Dividend Period contains 3 65 or more days, paying the shares of RP subject to such Special Dividend Period shall have an aggregate liquidation preference (exclusive of accumulated but unpaid dividends and incurring premium, if any) of at least $30,000,000 or such greater or lesser amount as may be specified by the liability Board of Trustees; (v) in respect of such Deferred any Special Dividend Period, the Board of Trustees shall also determine a Maximum Dividend Rate after consultation with Remarketing Agents, which rate, as determined from time to time by formula or other means, may be fixed or variable; and (andvi) in respect of any Special Dividend Period of 3 65 or more days, for the avoidance Board of doubtTrustees, such Deferred Dividend shall be payable in addition toafter consultation with the Remarketing Agents, and not in lieu ofmay establish Specific Redemption Provisions. On or before 5:00 p.m., any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed New York City time, on the basis third Business Day prior to the designation of a 360-day year consisting Special Dividend Period, the Trust shall complete and deliver to S&P, on a pro forma basis, an RP Basic Maintenance Report for such proposed Special Dividend Period, taking into account the proposed number of twelve 30-day months. Commencing on days to be specified as a Special Dividend Period and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period proposed Maximum Dividend Rate to be determined with respect to such Special Dividend Period. The existence or rescission of any Special Dividend Period shall not affect any current Dividend Period or prevent the Series A Preferred StockBoard of Trustees from establishing other Special Dividend Periods of similar duration or in any way restrict the Maximum Dividend Rate or Specific Redemption Provisions which may be designated in connection with any other Special Dividend Period. If the Remarketing Agents are unable to remarket sufficient shares of RP at the commencement of a Special Dividend Period to satisfy the requirement described in clause (iv) of the preceding paragraph, then a dividend shall be payable the Dividend Period in respect of each any share of RP which otherwise would have been subject to such Special Dividend Period shall be a 28-day Dividend Period (in the case of Series A Preferred Stock and B shares of RP) or a 7-day Dividend Period (in the case of Series C shares of RP) and an Applicable Dividend Rate shall be set by the Remarketing Agents in accordance with the remarketing procedures. (k) If all or any part of the dividends on the shares of RP determined by implementation of the remarketing procedures described in Part II hereof is not designated by the Trust in good faith as an exempt-interest dividend within the meaning of Section 852(b)(5) of the Code solely because the Trust allocates capital gains or ordinary income to the shares of RP, (such portion of the dividends on the shares of RP (other than any Gross-up Dividends) that is not so designated is referred to herein as a "Nonqualifying Distribution"), the Trust will, not later than 270 days after the end of the Trust's fiscal year for which such period designation is made, provide notice thereof to the Paying Agent. The Paying Agent will mail a copy of such notice to each Qualified Investor (as defined below) at the address specified in such Qualified Investor's Master Purchaser's Letter as promptly as practicable after its receipt of such notice from the Trust. The Trust will, within 3 0 days after such notice is given to the Paying Agent, pay to the Paying Agent (who will then distribute to the Qualified Investors) , out of funds legally available therefor, an amount equal to the greater aggregate Gross-up Dividends (as defined below) with respect to all Nonqualifying Distributions made to Qualified Investors during the fiscal year in question. A "Qualified Investor" is a Beneficial Owner during such fiscal year of a share or shares of RP to whom Nonqualifying Distributions were made during such fiscal year. A " Gross-up Dividend" means payment to a Qualified Investor of an amount which, when taken together with the aggregate Nonqualifying Distributions paid to such Qualified Investor during the fiscal year in question, would cause such Qualified Investor's net yield in dollars for such fiscal year (after Federal income tax consequences) from the aggregate of both the Nonqualifying Distributions (determined without regard to the Gross-Up Dividend) and the Gross-up Dividend to be equal to the net yield in dollars for such fiscal year (after Federal income tax consequences) which would have been received by such Qualified Investor if the amount of the aggregate Nonqualifying Distributions had been so designated. Such Gross-up Dividend shall be calculated (i) without consideration being given to the amount otherwise payable in respect time value of such share of Series A Preferred Stock in accordance with the foregoing paragraph and money; (ii) assuming that no Qualified Investor is subject to the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period alternative minimum tax with respect to a dividends received from the Trust; and (iii) assuming that each Nonqualifying Distribution and Gross-Up Dividend Payment Date (to the extent that such Gross-up Dividend is not exempt from Federal income tax) would be taxable in the period commencing hands of each Qualified Investor at the maximum marginal corporate Federal income tax rate in effect during the fiscal year in question. All such designations made by the Trust in good faith following the end of each fiscal year of the Trust and all other determinations made by the Trust in good faith with respect to dividends on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shares of RP shall be payable to Holders binding and conclusive for all purposes of record on determining the close amount of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.Gross-up Dividends re

Dividends. (a) Holders of shares of Series A Preferred Stock Commencing from and including the First Tranche Closing Date, cash dividends shall be entitled to cumulative dividends accrue on the Series A Preferred Stock First Tranche at the Dividend Rate and accumulate and be payable semiannually, which dividends shall be declared by in arrears (i) on the Board of Directors or a duly authorized committee thereof, out dividend payment date falling 18 months following the First Tranche Closing Date (the “First Dividend Payment Date”) in respect of the assets period from and including the issuance date of the Company legally available thereforFirst Tranche to but excluding the First Dividend Payment Date (the “First Preferred Dividend Period”), and shall be payable semiannually commencing (ii) thereafter on the 180th day dates falling every six months following the Issue First Dividend Payment Date (or together with the following Business Day if any such payment date is not a Business Day) (First Dividend Payment Date, each such date being referred to herein as a “Dividend Payment Date”) at in respect of the rate per annum of 6% per share on period from and including the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such previous Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and to but excluding the liability in respect thereof be incurred on the first succeeding subsequent Dividend Payment Date (or the Maturity Date) (together with the First Preferred Dividend Period, each a “Preferred Dividend Period”). (b) If the Second Tranche is issued, commencing from and including the Second Tranche Closing Date, cash dividends shall accrue on which the Company is not prohibited from declaring, paying Second Tranche at the Dividend Rate and incurring the liability accumulate and be payable in arrears on each Dividend Payment Date in respect of such Deferred the related Preferred Dividend Period. (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). c) The amount of dividends payable for on Series A Preferred Stock on any other period that is shorter or longer than date prior to the end of a full semiannual dividend period will Preferred Dividend Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months, and actual days elapsed over a 30-day month. Commencing Dividends shall accumulate whether or not in any Preferred Dividend Period there have been funds of the Corporation legally available for the payment of such Preferred Dividends. Dividends are payable on a cumulative basis once declared, whether or not there shall be funds legally available for the payment thereon. Dividends shall accrue and following remain payable until the Meeting End earlier of (i) the Conversion Date and (ii) the Maturity Date. The Corporation shall pay any and all withholding taxes that may be payable in respect of the dividend payments, and all dividend payments shall be made net of any required withholding taxes. (d) Subject to the foregoing, dividends (payable in cash, securities or other property) as may be determined by the Board of Directors or any duly authorized committee of the Board of Directors may be declared and paid on any other securities of the Corporation, including Common Stock and other Junior Securities, from time to time, and Holders of Series A Preferred Stock shall not be entitled to participate in any such dividends, provided, however, that, subject to the rights of holders of any Senior Securities, in the event that dividends are paid on (i) the dividend payable with respect to a share of Preferred Stock in a Preferred Dividend Period pursuant to Section 4(a) is less than (ii) the aggregate amount of any distributions made with regard to the equivalent number of shares of Common Stock in any dividend period with respect underlying such share of Preferred Stock during such Preferred Dividend Period (such shortfall being referred to as the Series A Preferred Stock“Dividend Shortfall”), then a dividend shall Holders will be payable entitled to receive in respect of each share of Series A Preferred Stock for such period Stock, in addition to the dividend payable pursuant to Section 4(a), an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendShortfall.

Dividends. (a) Holders The Corporation shall pay to the holders of shares the Series E Preferred Stock, a mandatory quarterly dividend at an annual rate of 11.25% of the Stated Amount (as such term is defined in Section 4 below) payable solely in the form of Common Stock of the Corporation, subject only to the Corporation being able to lawfully pay such dividend in accordance with applicable law. Dividends on the Series A E Preferred Stock shall be entitled commence to accrue and are cumulative dividends (whether or not declared) from the date on which such shares shall have been issued until the Series A Preferred Stock payable semiannuallydate on which such shares are redeemed, which converted or exchanged. Such dividends shall be declared by the Board of Directors or a duly authorized committee thereofmandatorily payable as stated above, out in Common Stock of the assets Corporation at its Current Market Price (as defined below) on the date of payment, in equal quarterly payments in arrears on the last day of each fiscal quarter of the Company legally available thereforCorporation of each year or such earlier date on which a share of Series E Preferred Stock is redeemed, and shall be payable semiannually commencing on the 180th day following the Issue Date (converted or the following Business Day if any such payment date is not a Business Day) exchanged (each such date being referred to herein as a “"Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that"), in the event that on any Dividend Payment Datecommencing December 31, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty1996, or related agreement, such dividend (a “Deferred Dividend”) shall if not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date by reason of a prohibition against such payment pursuant to the first sentence of this Subsection (a) (a "Payment Prohibition"), then promptly when and to the extent no liability shall be incurred such Payment Prohibition continues to apply; provided, however, that the dividend payable in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and of the liability in respect thereof be incurred quarter ended on the first succeeding Dividend Payment Date dividend payment date after the date on which the Company is not prohibited from declaring, paying such shares shall have been issued and incurring the liability in respect of such Deferred Dividend (and, any other quarter in which some or all of the Series E Preferred Stock was not outstanding for the avoidance entire quarter shall be reduced in proportion to the portion of doubtsuch quarterly period in which such shares were not outstanding; and provided further, however, that if and to the extent that, at any dividend payment date, the Corporation shall fail to make any quarterly dividend payment on the Series E Preferred Stock (which failure shall only be permitted to the extent a Payment Prohibition applies), such Deferred Dividend unpaid dividend amount shall accumulate without interest until paid. Such dividends shall be payable paid to the Series E Preferred Stock stockholders of record on the last business day immediately preceding the date of payment. All partial dividends paid with respect to shares of the Series E Preferred Stock shall be paid pro rata to the holders entitled thereto in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The proportion to the total amount of dividends payable for to which each is entitled. The "Current Market Price" of the Corporation's Common Stock on any other period that given day shall be: (i) if the Common Stock is shorter listed or longer than admitted to unlisted trading privileges on any exchange registered with the Securities and Exchange Commission as a full semiannual dividend period will be computed on "national securities exchange" under the basis Securities Exchange Act of 1934 (a 360-day year consisting "National Securities Exchange"), the arithmetic average of twelve 30-day months. Commencing on and following the Meeting End Date, in last sales price of the event that dividends are paid on shares of Common Stock on the National Securities Exchange in any dividend period with respect to or nearest the Series A Preferred Stock, then a dividend City of New York on which the shares of Common Stock shall be payable in respect of each share of Series A Preferred Stock for listed or admitted to unlisted trading privileges (or the quoted closing bid if there be no sales on such period in an amount equal National Securities Exchange) on the ten most recently completed trading days prior to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and day; or (ii) if the product Common Stock is not so listed or admitted, the arithmetic average of the closing sales price of a share of Common Stock as quoted in The Nasdaq Stock Market on the ten most recently completed trading days prior to the day in question; or (Aiii) if the aggregate dividends payable per Common Stock is not so quoted, the arithmetic average of the mean between the high and low bid prices of a share of Common Stock in the over-the-counter market on the ten most recently completed trading days prior to the day in question as reported by National Quotation Bureau Incorporated or a similar organization. (b) So long as any shares of the Series E Preferred Stock are outstanding, unless all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series E Preferred Stock outstanding shall have been paid in full, the Corporation shall not: (i) pay or declare any dividends, or make any other distributions, on any shares of stock ranking junior to the Series E Preferred Stock in respect of dividends or distribution of assets upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (a "Liquidation"); (ii) pay or declare any dividends, or make any other distributions, on any shares of stock ranking on a parity to the Series E Preferred Stock in respect of dividends or distribution of assets upon Liquidation, except dividends paid ratably on the Series E Preferred Stock and all such dividend period times parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; or (Biii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior to the number Series E Preferred Stock in respect of dividends or distribution of assets upon Liquidation, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Corporation raking junior to the Series E Preferred Stock in respect of dividends or distribution of assets upon Liquidation. Except as otherwise provided in this Subsection (b), the Board of Directors may declare and the Corporation may pay or set apart for payment dividends and other distributions on the common stock (the "Common Stock") and the preferred stock (the "Preferred Stock") of the Corporation ranking junior to or on a parity with the Series E Preferred Stock in respect of dividends or distributions of assets upon Liquidation, and may redeem, purchase, retire or otherwise acquire for consideration shares of Common Stock or Preferred Stock ranking junior to or on a parity with the Series E Preferred Stock in respect of dividends or distributions of assets upon Liquidation, and the holders of the Series E Preferred Stock shall not be entitled to share therein. (c) In the event the Corporation, not being in violation of the provisions of the preceding paragraph, shall distribute to all holders of its Common Stock (x) evidences of indebtedness or assets and property other than cash, (y) capital stock of the Corporation other than Common Stock, or (z) rights to purchase only (i) Common Stock (except in a Rights Offering as defined in Subsection 5(b) below) or (ii) units consisting of shares of Common Stock into which and warrants to purchase shares of Common Stock (all of such share distributions collectively hereinafter called "Shared Distributions"), then the holders of the Series A E Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, shall participate in such Shared Distributions as if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting date for determination of stockholders entitled to receive such Shared Distribution such holders had converted their shares of the Company Series E Preferred Stock in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates shares of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCommon Stock.

Dividends. (a) From the Issue Date, the Holders of the outstanding shares of Series A Senior Preferred Stock shall be entitled to cumulative receive, whether or not earned or declared and whether or not funds are legally available for the payment of such dividends, dividends on the Series A each share of Senior Preferred Stock payable semiannually, which at a rate per annum equal to the Applicable Rate then in effect of the Liquidation Preference per share of Senior Preferred Stock. All dividends shall be cumulative, whether or not earned or declared by the Board of Directors and whether or a duly authorized committee thereof, out of the assets of the Company not funds are legally available thereforfor the payment of such dividends, and shall be payable semiannually commencing on the 180th day following a daily basis from the Issue Date (or the following Business Day if any such payment date is not and shall compound on a Business Day) (each such date being referred to herein as quarterly basis at a “Dividend Payment Date”) at the rate per annum of 6% per share on equal to the Applicable Rate then in effect. Dividends for each Quarterly Dividend Period shall be paid with respect to such Quarterly Dividend Period by increasing the Liquidation Preference; provided that, Preference in effect at the event that on any beginning of such Quarterly Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared Period by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends cumulated and accrued during such Quarterly Dividend Period. (b) All dividends paid with respect to shares of the Senior Preferred Stock pursuant to paragraph (3)(a) shall be paid pro rata to the Holders entitled thereto. (c) Dividends payable on the Senior Preferred Stock for any other period that is shorter or longer less than a full semiannual dividend period will year shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following months and, for periods not involving a full calendar month, the Meeting End Date, in the event that dividends are paid on shares actual number of Common Stock in any dividend period with respect days elapsed (not to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of exceed 30 days). (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate No dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date or other distributions shall be payable to Holders of record on the close of business on the day on which declared by the Board of Directors or a duly authorized committee thereof declares paid or set apart for payment by the dividend payable Corporation on any Parity Securities for any period unless full cumulative dividends (each, a “including any increase or deemed increase in the Liquidation Preference above the Initial Liquidation Preference pursuant to Section 3 hereof) have been or contemporaneously are declared and paid in full in cash on the Senior Preferred Stock for all Quarterly Dividend Record Date”). Notwithstanding anything in this Section 3(a) Periods terminating on or prior to the contrarydate of payment of such dividends or other distributions on such Parity Securities. (ii) So long as any share of the Senior Preferred Stock is outstanding, the Corporation shall not declare, pay or set apart for payment any dividend or other distribution on any of the Junior Securities (other than dividends in the form of the same class of Junior Securities), or make any payment on account of, purchase, redeem, retire or set apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any of the Junior Securities or any warrants, rights, calls or options exercisable for or convertible into any of the Junior Securities whether in cash, obligations or shares of the Corporation or other property (other than in exchange for Junior Securities), and without limiting shall not permit any corporation or other remedy available entity directly or indirectly controlled by the Corporation to purchase or redeem any of the Company Junior Securities or any such warrants, rights, calls or options (other partythan in exchange for Junior Securities). (iii) So long as any share of the Senior Preferred Stock is outstanding, dividends the Corporation shall not accrue (except with respect to dividends as permitted by paragraph (3)(d)(i)) make any payment on account of, purchase, redeem, retire or be payable in respect of shares initially issued set apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company Parity Securities or any warrants, rights, calls or options exercisable for or convertible into any of the Parity Securities whether in order cash, obligations or shares of the Corporation or other property, and shall not permit any corporation or other entity directly or indirectly controlled by the Corporation to effect purchase or redeem any of the Stockholder Approval (Parity Securities or whose transferor Holder was so obligated) if any such Holder (warrants, rights, calls or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendoptions.

Dividends. (a) The Holders of shares a particular series of Series A Preferred Stock AMPS shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofTrustees of the Trust, out of the assets of the Company funds legally available therefor, cumulative dividends each consisting of cash at the Applicable Rate and no more, payable on the respective dates set forth below. Dividends on the shares of each series of AMPS so declared and payable shall be paid in preference to and in priority over any dividends declared and payable on the Common Shares. (i) Cash dividends on shares of each series of AMPS shall accumulate at the relevant Applicable Rate(s) from the Date of Original Issue and shall be payable semiannually payable, when, as and if declared by the Board of Trustees of the Trust, out of funds legally available therefor, commencing on the 180th Initial Dividend Payment Date. Following the Initial Dividend Payment Date for a series of AMPS, dividends on that series of AMPS will be payable, at the option of the Trust, either (i) with respect to any Seven-Day Dividend Period and any Short Term Dividend Period of 35 or fewer days, on the day following next succeeding the Issue Date last day thereof, or (or ii) with respect to any Short Term Dividend Period of more than 35 days and with respect to any Long Term Dividend Period, monthly on the following first Business Day of each calendar month during such Short Term Dividend Period or Long Term Dividend Period and on the day next succeeding the last day thereof (each such date referred to in clause (i) or (ii) being herein referred to as a "Normal Dividend Payment Date"), except that if any such payment date Normal Dividend Payment Date is not a Business Day) (each , then the Dividend Payment Date shall be the first Business Day next succeeding such date being referred to herein as a “Normal Dividend Payment Date”. Although any particular Dividend Payment Date may not occur on the originally scheduled date because of the exceptions discussed above, the next succeeding Dividend Payment Date, subject to such exceptions, will occur on the next following originally scheduled date. If for any reason a Dividend Period for a series of AMPS is scheduled to begin on the same day and end on the same day as a Dividend Period for another series of AMPS, then the last day of such Dividend Period for such other series of AMPS shall be the second Business Day next succeeding such scheduled day unless the Trust obtains the opinion of tax counsel referred to in this paragraph. Subject to the limitation in the next sentence, if for any reason a Dividend Payment Date cannot be fixed as described above, then the Board of Trustees of the Trust shall fix the Dividend Payment Date. However, no Dividend Period of any series of AMPS shall be co-extensive with any Dividend Period of any other series of AMPS unless the Trust has received an opinion of tax counsel that having such co-extensive periods will not affect the deductibility, for federal income tax purposes, of dividends paid on the different series of AMPS. The Board of Trustees of the Trust before authorizing a dividend may change a Dividend Payment Date if such change does not adversely affect the contract rights of the Holders of AMPS set forth in the Declaration of Trust or the Bylaws. The Initial Dividend Period, Seven-Day Dividend Periods and Special Dividend Periods with respect to a series of AMPS are hereinafter sometimes referred to as "Dividend Periods." Each dividend payment date determined as provided above is hereinafter referred to as a "Dividend Payment Date." (ii) Each dividend shall be paid to the Holders as they appear in the Share Register as of 12:00 noon, New York City time, on the Business Day preceding the Dividend Payment Date. Dividends in arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders as they appear on the Share Register on a date, not exceeding 15 days prior to the payment date therefor, as may be fixed by the Board of Trustees of the Trust. (i) During the period from and including the Date of Original Issue to but excluding the Initial Dividend Payment Date for a series of AMPS (the "Initial Dividend Period"), the Applicable Rate for such series of AMPS shall be the Initial Dividend Rate. Commencing on the Initial Dividend Payment Date for a series of AMPS, the Applicable Rate on that series for each subsequent dividend period (hereinafter referred to as a "Subsequent Dividend Period"), which Subsequent Dividend Period shall commence on and include a Dividend Payment Date and shall end on and include the calendar day prior to the next Dividend Payment Date (or last Dividend Payment Date in a Dividend Period if there is more than one Dividend Payment Date), shall be equal to the rate per annum that results from implementation of 6% per share the Auction Procedures. For a series of AMPS, the Applicable Rate for such series for each Dividend Period commencing during a Non-Payment Period shall be equal to the Non-Payment Period Rate; and each Dividend Period, commencing after the first day of and during, but not after the end of, a Non-Payment Period shall be a Seven-Day Dividend Period. Except in the case of the willful failure of the Trust to pay a dividend on a Dividend Payment Date or to redeem any AMPS on the Liquidation Preference; provided thatdate set for such redemption, in the event that any amount of any dividend due on any Dividend Payment Date (if, prior to the close of business on the second Business Day preceding such Dividend Payment Date, the Company is not permitted to declare or pay Trust has declared such dividend payable on such Dividend Payment Date to the Holders of such AMPS as of 12:00 noon, New York City time, on the Business Day preceding such Dividend Payment Date) or incur redemption price with respect to any AMPS not paid to such liability either Holders when due may be paid to such Holders in the same form of funds by 12:00 noon, New York City time, on any of the first three Business Days after such Dividend Payment Date or due date, as the case may be, provided that such amount is accompanied by a late charge calculated for such period of non-payment at the Non-Payment Period Rate applied to the amount of such non-payment based on the actual number of days comprising such period (x) as a matter of law or (y) under excluding any days that would have been Business Days but for the terms occurrence of any loan agreementunforeseen event or unforeseen events that caused such days not to be Business Days) divided by 365, credit agreementand in such case such period shall not constitute a Non-Payment Period; provided, guarantyhowever, or related agreement, such dividend (a “Deferred Dividend”) that the Trust shall not be declared required to pay any late charge if it declares a dividend on the Dividend Payment Date or the Business Day immediately preceding such Dividend Payment Date in accordance with clause (i) of the definition of "Non-Payment Period" and deposits payment for such dividend as contemplated by clause (ii)(A) of the Board definition of Directors"Non-Payment Period" on or before the second Business Day succeeding the day on which the dividend was declared. In the case of a willful failure of the Trust to pay a dividend on a Dividend Payment Date or to redeem any AMPS on the date set for such redemption, the preceding sentence shall not apply and the Applicable Rate for the Dividend Period commencing during the Non-Payment Period resulting from such failure shall be paid the Non-Payment Period Rate. For the purposes of the foregoing, payment to a person in same-day funds on any Business Day at any time shall be considered equivalent to payment to such person in New York Clearing House (next-day) funds at the same time on the preceding Business Day, and any payment made after 12:00 noon, New York City time, on any Business Day shall be considered to have been made instead in the same form of funds and to the same person before 12:00 noon, New York City time, on the next Business Day. (ii) The amount of dividends per share of any series of AMPS payable (if declared) on the Initial Dividend Payment Date, each Dividend Payment Date of each Seven-Day Dividend Period and each Dividend Payment Date of each Short Term Dividend Period shall be computed by multiplying the Applicable Rate for such Dividend Period by a fraction, the numerator of which will be the number of days in such Dividend Period or part thereof that such share was outstanding and the denominator of which will be 365, multiplying the amount so obtained by $25,000, and rounding the amount so obtained to the nearest cent. During any Long Term Dividend Period, the amount of cash dividends per share of a series of AMPS payable (if declared) on any Dividend Payment Date shall be computed by multiplying the Applicable Rate for such Dividend Period by a fraction, the numerator of which will be such number of days in such part of such Dividend Period that such share was outstanding and for which dividends are payable on such Dividend Payment Date and no liability the denominator of which will be 360, multiplying the amount so obtained by $25,000, and rounding the amount so obtained to the nearest cent. (iii) The Trust may, at its sole option and to the extent permitted by law, by telephonic and written notice (a "Request for Special Dividend Period") to the Auction Agent and to each Broker-Dealer, request that the next succeeding Dividend Period for a series of AMPS be a number of days (other than seven), evenly divisible by seven and not fewer than fourteen nor more than 364 in the case of a Short Term Dividend Period or one whole year or more but not greater than five years in the case of a Long Term Dividend Period, specified in such notice, provided that the Trust may not give a Request for Special Dividend Period for a Dividend Period of greater than 28 days (and any such request shall be incurred null and void) unless, for any Auction occurring after the initial Auction, Sufficient Clearing Bids were made in the last occurring Auction and unless full cumulative dividends and any amounts due with respect thereofto redemptions have been paid in full. Such Request for Special Dividend Period, in the case of a Short Term Dividend Period, shall be given on or prior to the second Business Day but not more than seven Business Days prior to an Auction Date for a series of AMPS and, in the case of a Long Term Dividend Period, shall be given on or prior to the second Business Day but not more than 28 days prior to an Auction Date for a series of AMPS. Upon receiving such Request for Special Dividend Period, the Broker-Dealer(s) shall jointly determine the Optional Redemption Price of the AMPS of the applicable series of AMPS during such Special Dividend Period and the Specific Redemption Provisions and shall give the Trust and the Auction Agent written notice (a "Response") of such determination by no later than the second Business Day prior to such Auction Date. In making such determination the Broker-Dealer(s) will consider (1) existing short-term and long-term market rates and indices of such short-term and long-term rates, (2) existing market supply and demand for short-term and long-term securities, (3) existing yield curves for short-term and long-term securities comparable to the AMPS, (4) industry and financial conditions which may affect the AMPS of the applicable series, (5) the investment objective of the Trust, and instead(6) the Dividend Periods and dividend rates at which current and potential beneficial holders of the AMPS would remain or become beneficial holders. After providing the Request for Special Dividend Period to the Auction Agent and each Broker-Dealer as set forth above, the Trust may by no later than the second Business Day prior to such Deferred Auction Date give a notice (a "Notice of Special Dividend Period") to the Auction Agent, the Securities Depository and each Broker-Dealer which notice will specify (i) the duration of the Special Dividend Period, (ii) the Optional Redemption Price, if any, as specified in the related Response and (iii) the Specific Redemption Provisions, if any, as specified in the related Response. The Trust also shall be declaredprovide a copy of such Notice of Special Dividend Period to Fitch Ratings, become payable ▇▇▇▇▇'▇ and be paid any Substitute Rating Agency. The Trust shall not give a Notice of Special Dividend Period and, if the Trust has given a Notice of Special Dividend Period, the Trust is required to give telephonic and written notice of its revocation (a "Notice of Revocation") to the Auction Agent, each Broker-Dealer, and the liability in Securities Depository on or prior to the Business Day prior to the relevant Auction Date if (x) either the 1940 Act Preferred Shares Asset Coverage is not satisfied or the Trust shall fail to maintain Fitch Eligible Assets and ▇▇▇▇▇'▇ Eligible Assets each with an aggregate Discounted Value at least equal to the Preferred Shares Basic Maintenance Amount, on each of the two Valuation Dates immediately preceding the Business Day prior to the relevant Auction Date on an actual basis and on a pro forma basis giving effect to the proposed Special Dividend Period (using as a pro forma dividend rate with respect thereof be incurred to such Special Dividend Period the dividend rate which the Broker-Dealers shall advise the Trust is an approximately equal rate for securities similar to the AMPS with an equal dividend period) or (y) sufficient funds for the payment of dividends payable on the first immediately succeeding Dividend Payment Date have not been irrevocably deposited with the Auction Agent by the close of business on which the Company is not prohibited from declaring, paying and incurring third Business Day preceding the liability in respect of Auction Date immediately preceding such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount Trust also shall provide a copy of dividends payable such Notice of Revocation to Fitch Ratings, ▇▇▇▇▇'▇ and any Substitute Rating Agency. If the Trust is prohibited from giving a Notice of Special Dividend Period as a result of any of the factors enumerated in clause (x) or (y) above or if the Trust gives a Notice of Revocation with respect to a Notice of Special Dividend Period for any other period series of AMPS, the next succeeding Dividend Period for that is shorter or longer than a full semiannual dividend period series will be computed on the basis of a 360Seven-day year consisting of twelve 30-day monthsDay Dividend Period. Commencing on and following the Meeting End DateIn addition, in the event that dividends Sufficient Clearing Bids are paid on shares not made in an Auction, or if an Auction is not held for any reason, such next succeeding Dividend Period will be a Seven-Day Dividend Period and the Trust may not again give a Notice of Common Stock Special Dividend Period for the AMPS (and any such attempted notice shall be null and void) until Sufficient Clearing Bids have been made in any dividend period an Auction with respect to the Series A Preferred Stocka Seven-Day Dividend Period. If an Auction is not held because an unforeseen event or unforeseen events cause a day that otherwise would have been a Dividend Payment Date or an Auction Date not to be a Business Day, then the length of the Dividend Period relating to such Dividend Payment Date shall be extended by seven days (or a dividend multiple thereof if necessary because of such unforeseen event or events) (an "Extension Period"), the Applicable Rate for such Extension Period shall be the Applicable Rate for the Dividend Period so extended and the Dividend Payment Date for such Dividend Period shall be the first Business Day next succeeding the end of such Extension Period. (i) Holders shall not be entitled to any dividends, whether payable in cash, property or AMPS, in excess of full cumulative dividends as herein provided. Except for the late charge payable pursuant to Section 11.2(c)(i) hereof, no interest, or sum of money in lieu of interest, shall be payable in respect of each share any dividend payment on the AMPS that may be in arrears. (ii) For so long as any AMPS are Outstanding, the Trust shall not declare, pay or set apart for payment any dividend or other distribution (other than a dividend or distribution paid in shares of, or options, warrants or rights to subscribe for or purchase, Common Shares or other shares of Series A Preferred Stock for such period in an amount equal beneficial interest, if any, ranking junior to the greater of (iAMPS as to dividends or upon liquidation) the amount otherwise payable in respect of such share the Common Shares or any other shares of Series A Preferred Stock in accordance beneficial interest of the Trust ranking junior to or on a parity with the foregoing paragraph AMPS as to dividends or upon liquidation, or call for redemption, redeem, purchase or otherwise acquire for consideration any Common Shares or any other such junior shares (except by conversion into or exchange for shares of the Trust ranking junior to the AMPS as to dividends and upon liquidation) or any other such Parity Shares (ii) except by conversion into or exchange for stock of the product of Trust ranking junior to or on a parity with the AMPS as to dividends and upon liquidation), unless (A) the aggregate dividends payable per share of Common Stock in immediately after such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Datetransaction, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date Trust shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.have Fitch Eli

Dividends. 3.1 Right and Payment The holders of the Preferred Stock shall be ----------------- paid cumulative cash dividends at the annual rate of $1.20 per share. Dividends shall accrue daily and accrued dividends for any period of less than one year shall be computed on the basis of the number of days elapsed out of a 360-day year. Dividends shall be payable in cash in quarterly installments on each Dividend Payment Date in the amount accrued to such Dividend Payment Date; provided, however, that cash dividends shall be required to be paid only to the extent the Company may lawfully do so under the Delaware Act; and, provided further, that notwithstanding any other provision of this Certificate of Designation, if the Company may not lawfully under the Delaware Act pay all the dividends it is required to pay under this Section 3 on any Dividend Payment --------- Date, it shall pay on such date all the dividends it may lawfully pay pro rata among the holders of the Preferred Stock and, at the earliest time or times thereafter when it may lawfully pay any or all of the balance of such dividends, it shall do so; and, provided further, notwithstanding any other provision of this Certificate of Designation, until such time as the Company's indebtedness to Bank of America National Trust and Savings Association has been paid in full or refinanced by a third party, the Company shall be permitted, in lieu of the cash dividend payments required above, to satisfy its obligation to make dividend payments by issuing a number of additional shares of Preferred Stock equal to the amount of the dividend payment otherwise payable on such Dividend Payment Date divided by $10.00. For the purposes of (ai) Holders computing the number of shares of Series A Preferred Stock issuable to a particular holder pursuant to the last proviso of the preceding sentence and (ii) minimizing fractional shares, all dividends payable to a particular holder in respect of all of its shares of Preferred Stock shall be aggregated prior to dividing by $10.00. Any remaining fractional share after the foregoing computation shall be rounded up if the fraction is one-half or more, and rounded down if the fraction A. to its commercial customers, plus three percentage points per annum; provided, in no event shall the foregoing interest rate exceed the maximum nonusurious rate of interest permitted by applicable law. In the event the Company fails to make any dividend required to be made pursuant to the preceding provisions for two consecutive Dividend Payment Dates, the holders of Preferred Stock. voting as a class, shall immediately be entitled at its option to appoint a person or persons comprising not more than 22% of the Company's Board of Directors to serve thereon until all unpaid dividends have been made current; provided, under the circumstances described, the holders of Preferred Stock shall be entitled to cumulative dividends on appoint at least one director to the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Company's Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Dividends. (a) Holders Subject to Section3(c), from and after the Initial Issue Date, dividends shall, with respect to each outstanding share of shares of Series A Preferred Stock, accrue on the Accreted Value at the Dividend Rate for each Dividend Period (as defined below) to and including the next Dividend Payment Date. Dividends on the Series A Preferred Stock shall be entitled to non-cumulative dividends and shall accrue on the Series A Preferred Stock payable semiannuallya daily basis, which whether or not declared. Such dividends shall be payable only when, as and if declared by the Board of Directors or a duly authorized committee thereofBoard, and when so declared and paid, such dividends shall be paid in cash out of the assets of the Company funds legally available therefor, therefor and shall be payable semiannually commencing on the 180th next Dividend Payment Date following such declaration by the Board to the Holders as they appear on the Corporation’s stock register at the Close of Business on the relevant Dividend Record Date. If any Dividend Payment Date falls on a day following the Issue Date (or the following Business Day if any such payment date that is not a Business Day, payment of dividends declared under this Section 3(a) (with respect to such Dividend Payment Date will be made on the next succeeding Business Day and no interest or dividends on such payment will accrue or accumulate, as the case may be, in respect of the delay. The period from the Initial Issue Date to and including July 31, 2017 and each such date being period from but excluding a Dividend Payment Date to and including the following Dividend Payment Date is herein referred to herein as a “Dividend Payment DatePeriod.” (b) at the rate per annum of 6% per share If a cash dividend is not declared and paid in accordance with Section 3(a) on the Liquidation Preference; provided that, in the event that on any a Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms then in full discharge of any loan agreementaccrual of dividends for such Dividend Period, credit agreementthe Accreted Value of each outstanding share of Series A Preferred Stock, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board regardless of Directorsits date of issue, shall not be paid or payable automatically increase on such Dividend Payment Date and no liability shall be incurred by an amount equal to the Dividend Rate multiplied by the Accreted Value in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and effect immediately after the liability in respect thereof be incurred on the first succeeding immediately prior Dividend Payment Date on which (or the Company is not prohibited from declaring, paying and incurring the liability Initial Issue Date in respect of such Deferred the first Dividend Period). (and, for the avoidance c) Dividends payable under Section 3(a) (or future dividends calculated in determining Change of doubt, such Deferred Dividend shall be payable Control Cash Price) and any increase in addition to, and not Accreted Value under Section 3(b) (or deemed increase in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment DateAccreted Value under Section 3(e). The amount of dividends payable ) for any other period that is shorter or longer less than a full semiannual quarterly dividend or accretion period will (based upon the number of days elapsed during the period) shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing . (d) Notwithstanding anything to the contrary in this Certificate of Designations, if at any time on and or after [●], 2019 [insert date that is the 30-months after the Initial Issue Date], the Closing Sale Price of the Common Stock equals or exceeds 130% of the Conversion Price then in effect for at least 25 consecutive Trading Days, all shares of Series A Preferred Stock will permanently cease to be entitled to any dividends pursuant to Section 3(a) or any further accretion of Accreted Value pursuant to Section 3(b) (the “Dividend Termination Date”); provided, however, that with respect to the period commencing on the day following the Meeting End Datelast Dividend Payment Date prior to the Dividend Termination Date and ending on, and including, the Dividend Termination Date (the “Final Accrual Period”), a cash dividend may be declared and paid in such amount accrued with respect to the Final Accrual Period payable on the next Dividend Payment Date following the Final Accrual Period as determined and paid otherwise in accordance with Section 3(a), or if not declared and paid in accordance with the foregoing, the Accreted Value shall accrete in an amount accrued with respect to the Final Accrual Period on the next Dividend Payment Date following the Final Accrual Period as determined and accreted otherwise in accordance with Section 3(b). (e) Under this Certificate of Designations, in calculating either the event that dividends are paid on (A) number of shares of Common Stock in any dividend period with respect to the issued upon conversion of a share of Series A Preferred Stock or (B) redemption price per share of Series A Preferred Stock, then a dividend shall be payable in respect the Accreted Value of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) shall be increased by the amount otherwise payable in respect of accrued and unpaid dividends during the then-current Dividend Period regardless of whether, at the time of such share conversion or redemption, a dividend payable on the immediately succeeding Dividend Payment Date has been declared pursuant to Section 3(a). Holders of shares of Series A Preferred Stock subject to conversion or redemption shall not be entitled to receive any payment of dividends declared pursuant to Section 3(a) in accordance with respect of the foregoing paragraph Dividend Period in which the conversion or redemption occurs notwithstanding that a Dividend Record Date may have been fixed for the payment of such dividends prior to such conversion or redemption. (f) The Series A Preferred Stock shall fully participate, on an as-converted basis, in any dividend declared and paid or distribution on the Common Stock (ii) other than any dividend paid or distribution on the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (Bconnection with the liquidation, winding up or dissolution of the Corporation) as if the number of Preferred Stock were converted into shares of Common Stock into which on the Record Date for such share dividend or distribution, at the Conversion Rate in effect on such Record Date. (g) Holders of shares of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a shall not be entitled to any dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything other than as set forth in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend3.

Dividends. (a) Holders So long as any shares of Series B Convertible Preferred Stock shall be outstanding, and subject to the right of holders of Common Stock to receive the Common Special Distribution, or if applicable, the right of the holders of the Convertible Preferred Stock and Purchaser in respect of the Warrant to receive the Other Equity Special Distribution, the holders of shares of Series A B Convertible Preferred Stock shall be entitled to cumulative dividends on the receive during each year with respect to each share of Series A B Convertible Preferred Stock payable semiannuallyStock, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company any funds legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount payment of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Datein cash, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (ix) the amount otherwise payable Dividend Rate on the Liquidation Preference hereunder, or (y) all dividends paid in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per a share of Common Stock in (excluding the Common Special Distribution) during such dividend period times (B) year calculated on the basis of the number of shares of Common Stock into which such a share of Series A B Preferred Stock may be converted, regardless of whether such stock is then convertible. For Dividends in an amount equal to the greater of clauses (x) or (y) in the preceding sentence, shall begin to accrue on a cumulative basis from the Original Issue Date, whether or not there shall be net profits or net assets of the Company legally available for the payment of those dividends and shall continue to accrue on a daily basis thereon until the date such share is converted into Common Stock in accordance with the provisions of this Certificate. As set forth in the definition of Liquidation Preference, unpaid dividends, whether or not declared, shall be added to and become a part of the Liquidation Preference. (b) Notwithstanding the foregoing, during the period commencing on the Original Issue Date and ending on the fifth anniversary of the Original Issue Date, the Company may not declare or pay dividends (except as otherwise provided herein) in respect of the Series B Convertible Preferred Stock, any Parity Securities or any Junior Securities, but dividends in respect of the Series B Convertible Preferred Stock shall continue to accrue in accordance with the provisions of Section 4(a). Thereafter, dividends to the extent declared by the Board of Directors shall be payable quarterly in arrears on the first Business Day of each calendar quarter (a "Dividend Payment Date") to holders of record on the tenth Business Day immediately prior to such Dividend Payment Date. (c) So long as any share of the Series B Convertible Preferred Stock is outstanding, no dividends (other than the Common Special Distribution, or the Rights Offering, or if applicable, the Other Equity Special Distribution due to Purchaser in respect of the Warrant) shall be declared or paid or set apart for payment or other distribution, declared or made upon Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Company, directly or indirectly (except by conversion into or exchange for Junior Securities), other than (i) a redemption, purchase or other acquisition of shares of Common Stock (or Common Stock equivalents) made for purposes of this Section 3(aan employee incentive or benefit plan of the Company or any subsidiary or to satisfy the Company's obligations pursuant to any contract or security requiring the Company to purchase shares of Common Stock (or Common Stock equivalents), (ii) any distribution in respect of the TOPrS or the 5 1/4% Convertible Subordinated Debentures due 2016 required pursuant to the terms of such securities, (iii) dividends or distribution of shares of Common Stock or rights on Common Stock, (iv) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (v) purchases of shares of Common Stock (or Common Stock equivalents) from officers or employees of the Company or its Subsidiaries upon termination of employment or retirement, or (vi) as a result of a reclassification of the Company's capital stock for another class or series of the Company's capital stock, unless and until in each case (i) all accrued and unpaid dividends for all past dividend periods on the Series B Convertible Preferred Stock and any other Parity Securities shall have been paid and (ii) sufficient funds shall have been paid for the current dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) Series B Convertible Preferred Stock and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendParity Securities.

Dividends. (a) Holders Subject to Section ‎11.8, beginning on July 1, 2027, holders of shares of issued and outstanding Series A D Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when, as and if approved by the Board of Directors or a duly authorized committee thereof, out of the assets funds of the Company Corporation legally available thereforfor the payment of distributions and declared by the Corporation, cumulative preferential dividends at a rate per annum equal to the Dividend Rate of the Liquidation Preference of the Series D Preferred Shares in effect on the first calendar day of the applicable Dividend Period. All Dividends on the Series D Preferred Shares shall be paid in cash or other property, shall accrue and accumulate (whether or not declared or paid) on each issued and outstanding share of the Series D Preferred Shares on a daily basis from July 1, 2027, and shall be payable semiannually commencing quarterly in equal amounts in arrears on the 180th last calendar day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) of each Dividend Period (each such date day being referred to herein as hereinafter called a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference); provided that, in the event that on if any Dividend Payment Date, the Company Date is not permitted to declare or pay such a Business Day, then the dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or that would otherwise have been payable on such Dividend Payment Date may be paid on the next succeeding Business Day with the same force and effect as if paid on such Dividend Payment Date, and no liability interest or additional dividends or other sums shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred accrue on the first succeeding amount so payable from such Dividend Payment Date to such next succeeding Business Day. Any dividend payable on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Series D Preferred Shares for any partial Dividend (and, for the avoidance of doubt, such Deferred Dividend Period shall be payable in addition to, prorated and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on as they appear in the stock records of the Corporation at the close of business on the applicable record date, which shall be the tenth day on which preceding the applicable Dividend Payment Date, or such other date designated by the Board of Directors or a an officer of the Corporation duly authorized committee thereof declares by the dividend payable Board of Directors for the payment of dividends that is not more than 30 nor less than ten days prior to such Dividend Payment Date (eacheach such date, a “Dividend Record Date”). Notwithstanding anything . (b) If the Corporation fails to pay any dividends on the Series D Preferred Shares in full for any three consecutive or non-consecutive Dividend Periods (such a failure, a “Dividend Default”), then: (i) commencing on the first day after the Dividend Payment Date on which a Dividend Default occurs and continuing until the date a Correction Event with respect to such Dividend Default occurs, the then-applicable Liquidation Preference per Series D Preferred Share shall increase by $0.50 per Series D Preferred Share; and (ii) following any Dividend Default that has been cured by the Corporation as provided above in subparagraph (i) of this Section 3(aparagraph ‎(b), if the Corporation subsequently fails to pay dividends on the Series D Preferred Shares in full for any subsequent three consecutive or non-consecutive Dividend Periods, such subsequent failure shall constitute a separate Dividend Default, and the foregoing provisions of subparagraph (i) of this paragraph ‎(b) shall immediately apply until such time as a Correction Event occurs with respect to such subsequent Dividend Default. (c) If, at any time (x) the Series B Preferred Shares obtain a National Market Listing, and either (i) the Corporation fails to obtain a National Market Listing for the Series D Preferred Shares within 60 consecutive days following the Corporation having obtained a National Market Listing for the Series B Preferred Shares, or (ii) the Series D Preferred Shares are delisted from the National Market Listing for a period of 90 consecutive days or longer following the Corporation having obtained a National Market Listing for the Series B Preferred Shares, or (y) the Common Shares are delisted from the National Market Listing for a period of 90 consecutive days or longer (any of the foregoing such events, a “Delisting Event”), then: (i) commencing on the first day after the Delisting Event occurs and continuing until the date a Correction Event with respect to such Delisting Event occurs, (A) in the case of a Delisting Event with respect to the contrarySeries D Preferred Shares, the then-applicable Liquidation Preference per Series D Preferred Share shall increase by $0.50 per Series D Preferred Share and (B) in the case of a Delisting Event with respect to the Common Shares, the then-applicable Liquidation Preference per Series D Preferred Share shall increase by $1.00 per Series D Preferred Share; and (ii) following any Delisting Event that has been cured by the Corporation as provided above in subparagraph (i) of this paragraph ‎(c), if (A) the Series D Preferred Shares subsequently cease to be subject to a National Market Listing for 90 consecutive days or longer or (B) the Common Shares subsequently cease to be subject to a National Market Listing for 90 consecutive days or longer, either of the foregoing such events shall constitute a separate Delisting Event with respect to the applicable shares, and without limiting the foregoing provisions of subparagraph (i) of this paragraph ‎(c) shall immediately apply until such time as a Correction Event occurs with respect to such subsequent Delisting Event. (d) No distribution or dividend on the Series D Preferred Shares will be declared by the Corporation or paid or Set Apart for Payment by the Corporation at such time as the terms and provisions of Senior Shares or any agreement of the Corporation (whether now existing or arising hereafter), including any agreement relating to its indebtedness, prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting aside of funds is restricted or prohibited under the Official Code of Georgia Annotated or other remedy available applicable law; provided, however, notwithstanding anything to the Company contrary contained herein, dividends on the Series D Preferred Shares shall continue to accrue and accumulate pursuant to the terms hereof regardless of whether (i) any or all of the foregoing restrictions exist; (ii) the Corporation has earnings or profits; (iii) there are funds legally available for the payment of such dividends; or (iv) such dividends are authorized by the Board of Directors. Accrued and unpaid dividends on the Series D Preferred Shares will accumulate commencing as of the Dividend Payment Date on which they first become payable. (e) Except as provided in paragraph ‎(f) of Section ‎11.3 and subject to paragraph ‎(g) of Section ‎11.3, no distributions or dividends, in cash or otherwise, may be declared or paid or Set Apart for Payment upon the Common Shares or upon any Junior Shares or Parity Shares, nor shall any Common Shares or any Junior Shares or Parity Shares be redeemed, purchased or otherwise acquired directly or indirectly for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such stock) by the Corporation (except by conversion into or exchange for Junior Shares or by redemption, purchase or acquisition of stock required under any employee benefit plan of the Corporation), unless, on the most recently preceding Dividend Payment Date on which dividends on the Series D Preferred Shares became payable, the Corporation paid such dividends together with all accumulated and unpaid dividends to date on the Series D Preferred Shares in full in cash or other partyproperty. (f) When all dividends accumulated and unpaid to date are not paid in full in cash or other property (or a sum of cash or other property sufficient for such full payment is not so Set Apart for Payment) upon the Series D Preferred Shares, all dividends declared, paid or Set Apart for Payment upon the Series D Preferred Shares, shall not accrue be declared and paid in cash or other property, as applicable, or declared and a sum of cash or other property, as applicable, sufficient for the payment thereof shall be Set Apart for Payment thereof. No interest, or sum of money or other property in lieu of interest, shall be payable in respect of shares initially issued any Holder who is contractually obligated dividend payment on Series D Preferred Shares or on any dividend payment or other payment on any Junior Shares which may be in arrears. (g) So long as any Series D Preferred Shares remain outstanding, no cash or stock dividends shall be paid or made to appear and vote in favor any holders of Common Shares, Series A Preferred Shares or any proposal made at a meeting class or series of stockholders Junior Shares, without the consent of the Company in order majority of the votes entitled to effect be cast by the Stockholder Approval holders of the outstanding Series D Preferred Shares. (or whose transferor Holder was so obligatedh) if such Holder (or such transferor Holder or Any dividend payment made on the Affiliates of either) fails so to appear Series D Preferred Shares shall first be credited against the earliest accumulated accrued and vote in favor. Any shares issued unpaid dividend due with respect to such Holders shall bear shares which remains payable at the Stockholder Approval Legendtime of such payment.

Dividends. (a) Holders With respect to each Dividend Period and subject to the rights of the holders of shares of Preferred Stock ranking senior to or on parity with the Series C Preferred Stock, the holders of shares of Series A C Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofBoard, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance payment of doubtdividends, such Deferred Dividend shall be payable quarterly cumulative cash dividends in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The an amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each per share of Series A C Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph $21.25 and (ii) the product amount of (A) the aggregate regular quarterly cash dividends payable per share of Common Stock in for such dividend period times (B) Dividend Period upon the number of shares of Common Stock (or portion thereof) into which such share of Series A C Preferred Stock is then convertible. For purposes of this convertible in accordance with Section 3(a)VII hereof (but, a dividend period with respect to any Dividend Period ending after the Fifteenth Anniversary Date, no amount shall be paid in respect of clause (ii) of this paragraph in respect of the portion of such Dividend Period occurring after the Fifteenth Anniversary Date). Notwithstanding anything to the contrary contained herein, the amount of dividends described under either clause (i) or (ii) of this paragraph for the initial Dividend Period, or any other period shorter than a full Dividend Period, shall be prorated and computed on the basis of twelve 30-day months and a 360-day year. The dividends on the Series C Preferred Stock for each Dividend Period shall, if and to the extent declared or authorized by the Board, be paid in arrears (without interest or other amount) on the Dividend Payment Date is with respect thereto, and, if not paid on such date, shall accumulate, whether or not there are funds legally available for the period commencing on payment thereof and whether or not such dividends are declared or authorized. The record date for dividends to the preceding holders of shares of Series C Preferred Stock for any Dividend Payment Date Period shall be the same as the record date for the dividends to the holders of shares of Common Stock for such Dividend Period (or, if there no such record is no preceding set for the Common Stock, the fifteenth day of the calendar month in which the applicable Dividend Payment Date falls). Accrued and unpaid dividends for any past Dividend Periods may be declared and paid at any time, without reference to any Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on such date, not exceeding 45 days preceding the close of business payment date thereof, as may be fixed by the Board. Any dividend payment made on the day on shares of Series C Preferred Stock shall first be credited against the earliest accumulated but unpaid dividend due with respect to such shares which the Board remains payable. No interest, or sum of Directors money in lieu of interest, shall be owing or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote dividend payment or payments on the Series C Preferred Stock, whether or not in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendarrears.

Dividends. (i) Dividends on the Company Preferred Securities will be payable from the date of initial issuance on a noncumulative basis, through October 2010 semi-annually in arrears on April [--] and October [--] of each year and thereafter on January [--], April [--], July [--] and October [--] of each year (each a "Dividend Payment Date" and each period from and including a Dividend Payment Date, or the date of initial issuance as applicable, to but not including the next Dividend Payment Date, a "Dividend Period") for the Dividend Period then ending, but only if the Company has legally available funds for such purpose and satisfies the other qualifications described below. Dividends will be payable on the liquidation preference (i) for each Dividend Period through the Dividend Period ending on the Dividend Payment Date in October 2010, at a fixed rate per annum on the liquidation preference equal to [--]% (calculated on the basis of a year of twelve 30-day months) and (ii) for each dividend period commencing on such Dividend Payment Date and thereafter, at a floating rate per annum on the liquidation preference equal to [--]% above three-month LIBOR (calculated on the basis of the actual number of days elapsed in a 360-day year). Dividends will be mandatorily due and payable in the circumstances described in Section 7.3(b)(ii) below, except that dividends will never be mandatorily due and payable if the Capital Limitation described below in Section 7.3(b)(iii) applies. If dividends on a Dividend Payment Date are neither mandatorily due and payable nor prohibited by application of the Capital Limitation, then (i) payment of dividends on the Company Preferred Securities will be limited by the Bank's Available Distributable Profits (see Section 7.3(b)(iv), below) and (ii) if the Bank delivers, on or before the tenth Business Day immediately preceding such Dividend Payment Date, an instruction (a "No Dividend Instruction") to the Company not to pay dividends on such Dividend Payment Date or to pay less than full dividends on such Dividend Payment Date, dividends payable on the related Dividend Payment Date will be limited as provided in such No Dividend Instruction (see Section 7.3(b)(v) below). LIBOR, with respect to a Determination Date, means the rate (expressed as a percentage per annum) for deposits in U.S. dollars for a three-month period commencing on the second London Banking Day immediately following that Determination Date that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on that Determination Date. If such rate does not appear on Telerate Page 3750, LIBOR will be determined on the basis of the rates which deposits in U.S. dollars for a three-month period commencing on the second London Banking Day immediately following that Determination Date and in a principal amount equal to an amount of not less than $1,000,000 that is representative for a single transaction in such market at such time, are offered to prime banks in the London interbank market by four major banks in the London interbank market selected by the Calculation Agent, after consultation with the Company, at approximately 11:00 a.m., London time, on that Determination Date. The Calculation Agent will request the principal London office of each of such banks to provide a quotation at its rate. If at least two such quotations are provided, LIBOR with respect to that Determination will be the arithmetic mean of such quotations. If fewer than two quotations are provided, LIBOR in respect of that Determination Date will be the arithmetic mean of the rates quoted by three major money center banks in New York City selected by the Calculation Agent, after consultation with the Company, at approximately 11:00 a.m., New York City time, on that Determination Date for loans in U.S. dollars to leading European banks for a three-month period commencing on the second London Banking Day immediately following that Determination Date and in a principal amount equal to an amount of not less than $1,000,000. However, if the banks selected by the Calculation Agent to provide quotations are not quoting as mentioned in this paragraph, LIBOR for the applicable period will be the same as LIBOR as determined on the previous Determination Date. All percentages resulting from any calculations on the Company Preferred Securities will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and all dollar amounts used in or resulting from such calculation will be rounded to the nearest cent (with one-half cent being rounded upward). (ii) The Company is required to pay dividends on the Company Preferred Securities in three circumstances, as follows: (A) If the Bank declares or pays dividends or makes any other payment or distribution on any Bank Junior Obligations and the Capital Limitation does not apply, then the Company will be required to pay full dividends on the -29- 34 Company Preferred Securities during the one-year period beginning on and including the earlier of the date on which such dividend was declared or the date on which such dividend or other payment was made. (B) If the Bank or any of its subsidiaries redeems, repurchases or otherwise acquires any Bank Parity Securities or Bank Junior Obligations for any consideration, except by conversion into or exchange for shares or Junior Obligations of the Bank and except as described below (and provided that the Capital Limitation does not apply), then the Company will be required to pay dividends on the Company Preferred Securities during the one-year period beginning on and including the date on which such redemption, repurchase or other acquisition occurred. (C) If (x) the Bank or any of its subsidiaries declares or pays any dividends or makes any other payment or distribution on any Bank Parity Securities on any date and (y) during the Relevant Period ending on and including such date there occurred a Dividend Payment Date as to which the Company paid no dividends or less than full dividends on the Company Preferred Securities, and provided that the Capital Limitation does not apply, then on that date the Company will be required to pay a special dividend on the Company Preferred Securities. The special dividend will be payable on that date whether or not that date is otherwise a Dividend Payment Date and, if it is a Dividend Payment Date, will be in addition to any other dividends required to be paid on such Dividend Payment Date. The special dividend will be in an amount that, when taken together with dividends previously paid on the Company Preferred Securities during the Relevant Period, represents the same proportion of full dividends on the Company Preferred Securities for all Dividend Payment Dates during the Relevant Period that the dividend on Bank Parity Securities paid on such date bears to full dividends on such Bank Parity Securities for the Relevant Period. Notwithstanding paragraph (B) above, the Company will not be required to pay dividends solely as a result of (a) Holders repurchases, redemptions or other acquisitions of Bank Parity Securities or ordinary shares in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or shareholder share purchase plan or in connection with the issuance of Bank Parity Securities or Bank Junior Obligations (or securities convertible into or exercisable for such Bank Parity Securities or Bank Junior Obligations) as consideration in an acquisition transaction, (b) market-making in the Bank Parity Securities or ordinary shares as part of the securities business of the Bank or any of its subsidiaries, (c) the purchase of fractional interests in shares of Series A Preferred Stock shall be entitled Bank Parity Securities or Bank Junior Obligations pursuant to cumulative the conversion or exchange provisions of such Bank Parity Securities or Bank Junior Obligations or the security being converted or exchanged, (d) any declaration of a dividend in connection with any shareholder's rights plan, or the issuance of rights, shares or other property under any shareholder's rights plan, or the redemption or repurchase of rights pursuant to any such plan, or (e) any dividend in the form of shares, warrants, options or other rights where the dividend shares or the shares -30- 35 issuable upon exercise of such warrants, options or other rights are the same shares as that on which the dividend is being paid or ranks pari passu with or junior to such shares. Any Dividend Payment Date or other date on which dividends on the Series A Company Preferred Stock payable semiannuallySecurities are required to be paid as described in paragraphs (A), which dividends shall be declared by the Board of Directors (B) or (C) above is a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “"Mandatory Dividend Payment Date”) at the rate per annum ." The amount of 6% per share on the Liquidation Preference; provided that, in the event that dividends required to be paid on any Mandatory Dividend Payment Date (after giving effect to the Capital Limitation, if applicable) is called the "Mandatory Dividend Payment Amount". If a Dividend Payment Date is a Mandatory Dividend Payment Date, the Company will be required to pay the Mandatory Dividend Payment Amount as dividends on that date whether or not there are Available Distributable Profits and whether or not interest is paid on the Subordinated Notes. (iii) The prohibition on the payment of dividends on the Company Preferred Securities as described below is called the "Capital Limitation". Unless the Swiss Federal Banking Commission expressly permits otherwise, the Company will not pay dividends on the Company Preferred Securities on any Dividend Payment Date (whether or not it is a Mandatory Dividend Payment Date) if on such date the Bank is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guarantyin compliance, or related agreementbecause of a distribution by the Bank or any of its subsidiaries of profits of the Bank (including a payment of dividends on the Company Preferred Securities) would not be in compliance, such dividend with the Swiss Federal Banking Commission's minimum capital adequacy requirements applicable to the Bank as then in effect. (iv) The limitation or prohibition on the payment of dividends on the Company Preferred Securities as described below is called the "Distributable Profits Limitation". The Distributable Profits Limitation will not limit or prohibit payment of dividends up to the Mandatory Dividend Payment Amount as to a Mandatory Dividend Payment Date. On or before the Dividend Payment Date in April of each year, the Bank will deliver a certificate to the Company (a “Deferred Dividend”"Distributable Profits Limitation Certificate") shall specifying: (i) the Distributable Profits of the Bank for the financial year ending on the preceding December 31 and (ii) the Available Distributable Profits for payment of dividends on the Company Preferred Securities on the Dividend Payment Dates in the then current year. Unless the Company is required to pay as dividends the Mandatory Dividend Payment Amount for a Mandatory Dividend Payment Date, (A) the aggregate amount of dividends on the Company Preferred Securities that the Company may pay on the Dividend Payment Date in April of the current year may not exceed the lesser of full dividends and the Available Distributable Profits set forth in such Distributable Profits Limitation Certificate, and (B) the aggregate amount of dividends on the Company Preferred Securities that the Company may pay on any subsequent Dividend Payment Date in the current year (or in January of the following year in the case of dividend payment dates occurring after October 2010) may not (v) Except for the Mandatory Dividend Payment Amounts required to be paid on Mandatory Dividend Payment Dates: (A) dividends on Company Preferred Securities will not be declared by payable on a Dividend Payment Date if, on or before the Board tenth Business Day immediately preceding such Dividend Payment Date, the Bank delivers a No Dividend Instruction to the Company instructing it not to pay dividends on such Dividend Payment Date; and (B) if, on or before the tenth Business Day immediately preceding such Dividend Payment Date, the Bank delivers a No Dividend Instruction to the Company limiting but not prohibiting the payment of Directorsdividends on such Dividend Payment Date, shall not dividends on the Company Preferred Security will be paid or payable on such Dividend Payment Date only to the extent permitted by such No Dividend Instruction. If a No Dividend Instruction is given, then the Company must promptly give notice to holders of the Company Preferred Securities in the manner described in Section 7.3(i) of the fact that it has received a No Dividend Instruction and no liability shall be incurred in respect thereofthe amount of dividends, and insteadif any, such Deferred Dividend shall be declared, become payable and that will be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding related Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Dividends. (a) Holders So long as any shares of Series C Convertible Preferred Stock shall be outstanding, and subject to the right of holders of Common Stock to receive the Common Special Distribution, or if applicable, the right of the holders of the Convertible Preferred Stock and Purchaser in respect of the Warrant to receive the Other Equity Special Distribution, the holders of shares of Series A C Convertible Preferred Stock shall be entitled to cumulative dividends on the receive during each year with respect to each share of Series A C Convertible Preferred Stock payable semiannuallyStock, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company any funds legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount payment of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Datein cash, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (ix) the amount otherwise payable Dividend Rate on the Liquidation Preference hereunder, or (y) all dividends paid in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per a share of Common Stock in (excluding the Common Special Distribution) during such dividend period times (B) year calculated on the basis of the number of shares of Common Stock into which such a share of Series A C Preferred Stock may be converted, regardless of whether such stock is then convertible. For Dividends in an amount equal to the greater of clauses (x) or (y) in the preceding sentence, shall begin to accrue on a cumulative basis from the Original Issue Date, whether or not there shall be net profits or net assets of the Company legally available for the payment of those dividends and shall continue to accrue on a daily basis thereon until the date such share is converted into Common Stock in accordance with the provisions of this Certificate. As set forth in the definition of Liquidation Preference, unpaid dividends, whether or not declared, shall be added to and become a part of the Liquidation Preference. (b) Notwithstanding the foregoing, during the period commencing on the Original Issue Date and ending on the fifth anniversary of the Original Issue Date, the Company may not declare or pay dividends (except as otherwise provided herein) in respect of the Series C Convertible Preferred Stock, any Parity Securities or any Junior Securities, but dividends in respect of the Series C Convertible Preferred Stock shall continue to accrue in accordance with the provisions of Section 4(a). Thereafter, dividends to the extent declared by the Board of Directors shall be payable quarterly in arrears on the first Business Day of each calendar quarter (a "Dividend Payment Date") to holders of record on the tenth Business Day immediately prior to such Dividend Payment Date. (c) So long as any share of the Series C Convertible Preferred Stock is outstanding, no dividends (other than the Common Special Distribution, or the Rights Offering, or if applicable, the Other Equity Special Distribution due to Purchaser in respect of the Warrant) shall be declared or paid or set apart for payment or other distribution, declared or made upon Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Company, directly or indirectly (except by conversion into or exchange for Junior Securities), other than (i) a redemption, purchase or other acquisition of shares of Common Stock (or Common Stock equivalents) made for purposes of this Section 3(aan employee incentive or benefit plan of the Company or any subsidiary or to satisfy the Company's obligations pursuant to any contract or security requiring the Company to purchase shares of Common Stock (or Common Stock equivalents), (ii) any distribution in respect of the TOPrS or the 5 1/4% Convertible Subordinated Debentures due 2016 required pursuant to the terms of such securities, (iii) dividends or distribution of shares of Common Stock or rights on Common Stock, (iv) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (v) purchases of shares of Common Stock (or Common Stock equivalents) from officers or employees of the Company or its Subsidiaries upon termination of employment or retirement, or (vi) as a result of a reclassification of the Company's capital stock for another class or series of the Company's capital stock, unless and until in each case (i) all accrued and unpaid dividends for all past dividend periods on the Series C Convertible Preferred Stock and any other Parity Securities shall have been paid and (ii) sufficient funds shall have been paid for the current dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) Series C Convertible Preferred Stock and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendParity Securities.

Dividends. (a) 3.1 The Holders of shares of Series A Preferred Stock shall be entitled to cumulative receive, when, as, and if declared by the Board of Directors, out of funds legally available therefor, cash dividends on each share of Cumulative Preferred Stock, at a rate per annum equal to the Series A Preferred Stock payable semiannually, which Dividend Rate (as defined below and applicable from time to time) on the Liquidation Preference and all accrued and unpaid dividends. Such dividends shall be cumulative and accrue and compound quarterly (whether or not earned or declared and whether or not there are funds legally available therefor) from the date of issuance thereof (the “Issue Date”) and shall be payable on each dividend payment date declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each of such date dates being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders holders of record on at the close of business on the day on which date specified by the Board of Directors or a duly authorized committee thereof declares at the time such dividend payable is declared (each, a the “Dividend Record Date”). Notwithstanding anything in this Section 3(a) Any such Record Date shall be no more than 60 days and no less than 10 days prior to the contraryrelevant Dividend Payment Date. Any dividend not paid on the Dividend Payment Date therefor shall be fully cumulative and shall accrue and compound (whether or not earned or declared and whether or not there are funds legally available therefor) at the Dividend Rate per annum compounded quarterly from the date of such Dividend Payment Date and shall be in arrears until paid. 3.2 Each fractional share of Cumulative Preferred Stock outstanding shall be entitled to a ratably proportionate amount of all dividends accruing with respect to each outstanding share of Cumulative Preferred Stock pursuant to paragraph 3.1, and without limiting any other remedy available all such dividends with respect to such outstanding fractional shares shall be cumulative and shall accrue and compound (whether or not declared) from the Company date of the issuance of such share or any other partyfractional share, dividends as the case may be, and shall not accrue or be payable in the same manner and at such times as provided for in paragraph 3.1 with respect to dividends on each outstanding share of shares initially issued any Holder who is contractually obligated Cumulative Preferred Stock. Each fractional share of Cumulative Preferred Stock outstanding shall also be entitled to appear and vote in favor a ratably proportionate amount of any proposal other distributions made with respect to each outstanding share of Cumulative Preferred Stock, and all such distributions shall be payable in the same manner and at a meeting the same time as distributions with respect to each outstanding share of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCumulative Preferred Stock.

Dividends. (a) Subject to applicable law, except for share capitalizations or distributions for which adjustments are to be made pursuant to Section 7, Holders of shares of Series A Preferred Stock shall be entitled to cumulative receive, and the Company shall pay, dividends on Preference Shares equal (on an as-if-converted-to-Ordinary Shares basis, disregarding for such purpose any conversion limitations or restrictions hereunder) to and in the Series A Preferred Stock payable semiannuallysame form as dividends actually paid on the Ordinary Shares when, as and if such dividends are paid on Ordinary Shares. If the Nasdaq Approval is not obtained at the Company’s 2023 annual general meeting (the “2023 Meeting”), subject to applicable corporate law, the Company shall pay a non-cumulative cash dividend on each Preference Share out of any funds that are legally available therefor under applicable corporate law at the rate of fourteen percent (14%) per annum of the outstanding Stated Value of such Preference Share, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing annually in arrears on the 180th day following the Issue Date September 30 (or the following Business Day if a “Cash Dividend”) of each year (unless any such payment date day is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the which event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Cash Dividend shall be payable in addition toon the next succeeding Business Day, without accrual to the actual payment date), initially commencing to accrue on the 2023 Meeting date and not in lieu of, any dividend ending on the Nasdaq Approval Date. Any Cash Dividend which would ordinarily be is payable on such succeeding Dividend Payment Date). The amount of dividends payable the Preference Shares pursuant to this Section 3 for any other period that is shorter or longer than a full semiannual dividend period will shall be computed on the basis of a 360-360 day year consisting and the actual number of twelve 30-day monthsdays elapsed. Commencing No other dividends shall be paid on and following the Meeting End Date, in Preference Shares. In the event that dividends are paid on shares of Common Stock in the Company is prohibited from paying any dividend period with respect Cash Dividend under the applicable corporate law, the Company shall so notify to the Series A Preferred StockHolder in writing setting forth the basis therefor, then a dividend and in connection therewith, the Company shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal issue and deliver to the greater Holder an unsecured promissory note equivalent to the amount of the required Cash Dividend so prohibited (“Prohibited Cash Dividend”), which promissory note (any such note, a “14% Note”) shall (i) mature in one year from the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and Cash Dividend payment date, (ii) discharge in full the product Company’s obligation to pay such Prohibited Cash Dividend and no Cash Dividend shall be deemed to have accrued and (iii) accrual of (A) simple interest at 14% per annum shall be computed on basis of a 360 day year and the aggregate dividends payable per share of Common Stock in such dividend period times (B) the actual number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibledays elapsed. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing The Company shall not pay any dividends on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to Ordinary Shares unless the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who simultaneously complies with this provision and no 14% Note is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendoutstanding.

Dividends. (a) Holders of shares The holders of Series A E Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, Trustees out of funds legally available for that purpose, cumulative preferential dividends payable on each Dividend Payment Date in cash in an amount equal to the assets sum of (i) $47.625 per share plus (ii) if the sum of all dividends paid on one Common Share during the preceding Dividend Period (i.e., the Dividend Period ending on the immediately preceding Dividend Payment Date) (such sum, the "Prior Period Dividends") exceeds the Common Dividend Threshold Amount (as defined below), an amount equal to the product of (x) 50% times (y) the excess of the Prior Period Dividends over the Common Dividend Threshold Amount times (z) the Equalization Factor (as defined below). Such dividends shall begin to accrue and shall be fully cumulative from and including the Initial Dividend Accrual Date, whether or not in any Dividend Period or Periods there shall be funds of the Company legally available thereforfor the payment of such dividends, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day quarterly, when, as and if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of DirectorsTrustees, shall not be paid or payable in arrears on such Dividend Payment Dates, commencing on the first Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and after the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend Issue Date. Such dividends shall be payable in addition toarrears to the holders of record of Series E Preferred Shares, and as they appear on the share records of the Company at the close of business on the record date, which shall be the 15th day of the calendar month in which the applicable Dividend Payment Date falls or such other date designated by the Board of Trustees that is not in lieu of, any dividend which would ordinarily be payable on such succeeding more than 30 nor less than 10 days preceding the relevant Dividend Payment Date). Accrued and unpaid dividends for any past Dividend Periods may be declared and paid on any date and for such interim periods, without reference to any regular Dividend Payment Date, to holders of record on such date, not more than 30 nor less than 10 days preceding the payment date thereof, as may be fixed by the Board of Trustees. Any dividend payment made on the Series E Preferred Shares shall first be credited against the earliest accrued but unpaid dividend due with respect to the Series E Preferred Shares which remains payable. (b) The amount of dividends payable for the initial Dividend Period and for any other period that is Dividend Period shorter or longer than a full semiannual dividend period will Dividend Period for the Series E Preferred Shares shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End DateHolders of Series E Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or shares of stock, in the event that dividends are paid excess of cumulative dividends, as herein provided, on shares of Common Stock in any dividend period with respect to the Series A E Preferred StockShares. No interest, then a dividend or sum of money in lieu of interest, shall be payable in respect of each any dividend payment or payments on the Series E Preferred Shares that may be in arrears. (c) If the Company, or any of its Subsidiaries, shall, after the Issue Date consummate a tender or exchange offer for all or any portion of the Company's Common Shares that involves an aggregate consideration per share in excess of Series A Preferred Stock the Market Price per Common Share as of the date immediately preceding the date notice is first given to the public or the holders of Common Shares of such tender or exchange offer (the "Tender Notice Date"), then the amount of the Prior Period Dividends for the Dividend Period ending on or after the closing date of such period in tender or exchange offer, shall include an amount equal to the greater of fair market value (i) the amount otherwise payable to be determined in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which good faith by the Board of Directors or a duly authorized committee thereof declares to be the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(afair market value) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company consideration paid in order to effect such tender or exchange for each share so tendered less the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or Market Price per Common Share on the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear date immediately preceding the Stockholder Approval LegendTender Notice Date.

Dividends. (a) Holders of shares The holders of Series A E Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, Trustees out of funds legally available for that purpose, cumulative preferential dividends payable on each Dividend Payment Date in cash in an amount equal to the assets sum of (i) $47.625 per share plus (ii) if the sum of all dividends paid on one Common Share during the preceding Dividend Period (i.e., the Dividend Period ending on the immediately preceding Dividend Payment Date) (such sum, the “Prior Period Dividends”) exceeds the Common Dividend Threshold Amount (as defined below), an amount equal to the product of (x) 50% times (y) the excess of the Prior Period Dividends over the Common Dividend Threshold Amount times (z) the Equalization Factor (as defined below). Such dividends shall begin to accrue and shall be fully cumulative from and including the Initial Dividend Accrual Date, whether or not in any Dividend Period or Periods there shall be funds of the Company legally available thereforfor the payment of such dividends, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day quarterly, when, as and if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of DirectorsTrustees, shall not be paid or payable in arrears on such Dividend Payment Dates, commencing on the first Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and after the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend Issue Date. Such dividends shall be payable in addition toarrears to the holders of record of Series E Preferred Shares, and as they appear on the share records of the Company at the close of business on the record date, which shall be the 15th day of the calendar month in which the applicable Dividend Payment Date falls or such other date designated by the Board of Trustees that is not in lieu of, any dividend which would ordinarily be payable on such succeeding more than 30 nor less than 10 days preceding the relevant Dividend Payment Date). Accrued and unpaid dividends for any past Dividend Periods may be declared and paid on any date and for such interim periods, without reference to any regular Dividend Payment Date, to holders of record on such date, not more than 30 nor less than 10 days preceding the payment date thereof, as may be fixed by the Board of Trustees. Any dividend payment made on the Series E Preferred Shares shall first be credited against the earliest accrued but unpaid dividend due with respect to the Series E Preferred Shares which remains payable. (b) The amount of dividends payable for the initial Dividend Period and for any other period that is Dividend Period shorter or longer than a full semiannual dividend period will Dividend Period for the Series E Preferred Shares shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End DateHolders of Series E Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or shares of stock, in the event that dividends are paid excess of cumulative dividends, as herein provided, on shares of Common Stock in any dividend period with respect to the Series A E Preferred StockShares. No interest, then a dividend or sum of money in lieu of interest, shall be payable in respect of each any dividend payment or payments on the Series E Preferred Shares that may be in arrears. (c) If the Company, or any of its Subsidiaries, shall, after the Issue Date consummate a tender or exchange offer for all or any portion of the Company’s Common Shares that involves an aggregate consideration per share in excess of Series A Preferred Stock the Market Price per Common Share as of the date immediately preceding the date notice is first given to the public or the holders of Common Shares of such tender or exchange offer (the “Tender Notice Date”), then the amount of the Prior Period Dividends for the Dividend Period ending on or after the closing date of such period in tender or exchange offer, shall include an amount equal to the greater fair market value (to be determined in good faith by the Board of Directors to be the fair market value) of the consideration paid in such tender or exchange for each share so tendered less the Market Price per Common Share on the date immediately preceding the Tender Notice Date. (d) Dividends on Series E Preferred Shares will accrue whether or not the Company has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. (e) If, for any taxable year, the Company elects to designate as “capital gain dividends” (as defined in Section 857 of the Code), any portion (the “Capital Gains Amount”) of the total dividends paid or made available for the year to holders of all classes of capital stock (the “Total Dividends”), then the portion of the Capital Gains Amount that shall be allocable to holders of Series E Preferred Shares shall be in the same portion that the Total Dividends paid or made available to the holders of Series E Preferred Shares for the year bears to the Total Dividends. (f) So long as any Series E Preferred Shares are outstanding, no dividends, except as described in the immediately following sentence, shall be declared or paid or set apart for payment on any class or series of Parity Shares for any period unless full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Series E Preferred Shares for all Dividend Periods terminating on or prior to the dividend payment date for such class or series of Parity Shares. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends declared upon Series E Preferred Shares and all dividends declared upon any other class or series of Parity Shares shall be declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Series E Preferred Shares and accumulated and unpaid on such Parity Shares. (g) So long as any Series E Preferred Shares are outstanding, no dividends (other than dividends or distributions paid solely in, or options, warrants or rights to subscribe for or purchase, Fully Junior Shares) shall be declared or paid or set apart for payment or other distribution declared or made upon Junior Shares or Fully Junior Shares, nor shall any Junior Shares or Fully Junior Shares be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of Common Shares made for purposes of any employee incentive or benefit plan of the Company or any subsidiary) for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Company, directly or indirectly (except by conversion into or exchange for Fully Junior Shares), unless in each case (i) the amount otherwise payable in full cumulative dividends on all outstanding Series E Preferred Shares and any Parity Shares shall have been or contemporaneously are declared and paid or declared and set apart for payment for all past Dividend Periods with respect of to the Series E Preferred Shares and all past dividend periods with respect to such share of Series A Preferred Stock in accordance with the foregoing paragraph Parity Shares and (ii) sufficient funds shall have been or contemporaneously are declared and paid or declared and set apart for the product payment of (A) the aggregate dividends payable per share of Common Stock in such dividend for the current Dividend Period with respect to the Series E Preferred Shares and the current dividend period times with respect to such Parity Shares. (Bh) No dividends on Series E Preferred Shares shall be declared by the number Board of shares Trustees or paid or set apart for payment by the Company at such time as the terms and provisions of Common Stock into which any agreement of the Company, including any agreement relating to its indebtedness, prohibits such share of Series A Preferred Stock is then convertible. declaration, payment or setting apart for payment or provides that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law. (i) For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date3, the Issue Date) and ending on following terms shall have the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.meanings set forth below:

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A receive, with respect to each share of Preferred Stock payable semiannually, which dividends shall be declared by prior to any distributions made in respect of any Junior Stock in respect of the Board of Directors or a duly authorized committee thereofsame fiscal quarter, out of the assets of the Company funds legally available thereforfor payment, and shall be payable semiannually commencing on the 180th day following the Issue Date cash dividends (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment DateCash Dividends”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, Preference in effect immediately after the event that on any Dividend Payment Datelast day of the immediately prior fiscal quarter (or if there has been no prior full fiscal quarter, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Issue Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be , computed on the basis of a 360-day year consisting of twelve 30-day months, at the Dividend Rate, compounded quarterly on each Dividend Payment Date. Commencing To the extent the Board of Directors so declares, Cash Dividends shall be payable in arrears on each Dividend Payment Date for the fiscal quarter ending immediately prior to such Dividend Payment Date (or with respect to the first Dividend Payment Date, for the period commencing on the Issue Date and ending on the last day of the fiscal quarter following the Meeting End Issue Date), to the Holders as they appear on the Company’s stock register at the close of business on the relevant Dividend Record Date. Dividends on the Preferred Stock shall accumulate and become Accrued Dividends on a day-to-day basis from the last day of the most recent fiscal quarter, or if there has been no prior full fiscal quarter, from the Issue Date, until Cash Dividends are paid pursuant to this Section 3(a) in respect of such accumulated amounts or the Liquidation Preference is increased in respect of such accumulated amounts pursuant to Section 3(b). (b) Notwithstanding anything to the contrary in Section 3(a), the Company may, at the sole election of the Board of Directors, with respect to any dividend declared in respect of any fiscal quarter ending on or prior to December 31, 2017, elect (a “Non-Cash Dividend Election”) to have the amount that would have been payable if such dividend had been a cash dividend payable in cash (the “Non-Cash Dividend Amount”) to be added to the Liquidation Preference in lieu of paying such dividend in cash. If the Company makes a Non-Cash Dividend Election pursuant to this Section 3(b), then contemporaneous with increasing the Liquidation Preference by the applicable Non-Cash Dividend Amount, the Company will grant and deliver to the Holders additional Warrants having the same terms (including exercise price) as the Warrants issued under the Warrant Agreement on the Issue Date as follows: (i) Series A Warrants (as defined in the event that dividends are paid on Warrant Agreement) entitling the holder thereof to purchase a number of shares of Common Stock equal to (x) the quotient of (I) the applicable Non-Cash Dividend Amount divided by (II) 1,000, multiplied by (y) 14.04 (subject to the same adjustments pursuant to the terms of the Warrant Agreement that the Warrants issued on the Issue Date have been subject) and (ii) Series B Warrants (as defined in the Warrant Agreement) entitling the holders thereof to purchase a number of shares of Common Stock equal to (x) the quotient of (I) the applicable Non-Cash Dividend Amount divided by (II) 1,000, multiplied (y) 6.77 (subject to the same adjustments pursuant to the terms of the Warrant Agreement that the Warrants issued on the Issue Date have been subject), in each case rounded up to the nearest whole share of Common Stock. If the Company fails to pay a Cash Dividend in respect of any dividend fiscal quarter ending on or prior to December 31, 2017 and does not make a Non-Cash Dividend Election in respect thereof, the Company shall be deemed to have made a Non-Cash Dividend Election for all purposes of this Certificate of Designations. (c) Notwithstanding anything to the contrary herein, if any shares of Preferred Stock are converted into Common Stock in accordance with this Certificate of Designations on a date during the period between the close of business on any Dividend Record Date and the close of business on the corresponding Dividend Payment Date, the Accrued Dividends with respect to the Series A such shares of Preferred Stock, then at the Company’s option, shall either (x) be paid in cash on or prior to the date of such conversion or (y) not be paid in cash, be deemed to be Accumulated Dividends and be added to the Liquidation Preference for purposes of such conversion. For the avoidance of doubt, such Accrued Dividends shall include dividends accruing from, and including, the last day of the most recently preceding fiscal quarter to, but not including, the applicable Conversion Date. The Holders at the close of business on a Dividend Record Date shall be entitled to receive any dividend paid as a Cash Dividend on those shares on the corresponding Dividend Payment Date. (d) Notwithstanding anything to the contrary herein, if any shares of Preferred Stock are redeemed by the Company in accordance with this Certificate of Designations on a date during the period between the close of business on any Dividend Record Date and the close of business on the corresponding Dividend Payment Date, the Accrued Dividends with respect to such shares of Preferred Stock shall be deemed to be Accumulated Dividends and shall be added to the Liquidation Preference for purposes of such redemption. For the avoidance of doubt, such Accrued Dividends shall include dividends accruing from, and including, the last day of the most recently preceding fiscal quarter to, but not including, the Optional Redemption Date or the Change of Control Redemption Date, as applicable. The Holders at the close of business on a Dividend Record Date shall be entitled to receive any dividend paid as a Cash Dividend on those shares on the corresponding Dividend Payment Date. (e) So long as any share of the Preferred Stock remains outstanding, no dividend or distribution shall be declared or paid on, and no redemption or repurchase shall be agreed to or consummated of, Parity Stock, Common Stock or any other shares of Junior Stock, unless all accumulated and unpaid dividends for all preceding full fiscal quarters (including the fiscal quarter in which such accumulated and unpaid dividends first arose) of the Company have been declared and paid; provided, however, that the foregoing limitation shall not apply to (i) a dividend payable on Common Stock or other Junior Stock in shares of Common Stock or other Junior Stock, (ii) the acquisition of shares of Common Stock or other Junior Stock in exchange for shares of Common Stock or other Junior Stock and the payment of cash in lieu of fractional shares of Common Stock or other Junior Stock; (iii) purchases of fractional interests in shares of Common Stock or other Junior Stock pursuant to the conversion or exchange provisions of shares of other Junior Stock or any securities exchangeable for or convertible into such shares of Common Stock or other Junior Stock; (iv) redemptions, purchases or other acquisitions of shares of Common Stock or other Junior Stock in connection with the administration of any employee benefit plan in the ordinary course of business, including, without limitation, the forfeiture of unvested shares of restricted stock or share withholdings upon exercise, delivery or vesting of equity awards granted to officers, directors and employees and the payment of cash in lieu of fractional shares of Common Stock or other Junior Stock; (v) any dividends or distributions of rights in connection with a stockholders’ rights plan or any redemption or repurchase of rights pursuant to any stockholders’ rights plan; and (vi) the exchange or conversion of Junior Stock for or into other Junior Stock and the payment of cash in lieu of fractional shares of other Junior Stock; provided further, however, that the foregoing limitation in the first clause of this Section 3(e) shall not apply to the extent all such accumulated and unpaid dividends have been deemed to be Accumulated Dividends and have been added to the Liquidation Preference in accordance with Sections 3(b), 3(c) and 3(d). Notwithstanding the preceding, if full dividends have not been paid on the Preferred Stock and any Parity Stock, dividends may be declared and paid on the Preferred Stock and such Parity Stock so long as the dividends are declared and paid pro rata so that amounts of dividends declared per share on the Preferred Stock and such Parity Stock shall in all cases bear to each other the same ratio that accumulated and unpaid dividends per share on the shares of Preferred Stock and such other Parity Stock bear to each other. (f) For the avoidance of doubt, the only requirement of the Company to deliver additional Warrants to the Holders under this Certificate of Designations shall be payable as expressly provided in respect Section 3(b). Any other addition of each share Accumulated Dividends to the Liquidation Preference (including pursuant to Sections 3(c) and 3(d)) shall not result in the issuance of Series A Preferred Stock for such period additional Warrants. (g) Except as provided in Section 3(b), if the Company fails to pay in full in cash to the Holders a Cash Dividend in an amount equal to the greater product of the Liquidation Preference multiplied by the Dividend Rate for a fiscal quarter, then (i) the amount otherwise payable in respect of such share of Series A Preferred Stock shortfall will continue to be owed by the Company to the Holders and will accumulate until paid in accordance with the foregoing paragraph and full in cash, (ii) the product of Liquidation Preference will be deemed increased by such amount until paid in full in cash and (Aiii) contemporaneous with increasing the aggregate dividends payable per share of Common Stock Liquidation Preference by such shortfall, the Company will grant and deliver to the Holders additional Warrants having the same terms (including exercise price) as the Warrants issued under the Warrant Agreement on the Issue Date as follows: (i) Series A Warrants (as defined in such dividend period times (Bthe Warrant Agreement) entitling the holder thereof to purchase a number of shares of Common Stock into which such equal to (x) the quotient of (I) the shortfall amount divided by (II) 1,000, multiplied by (y) 14.04 (subject to the same adjustments pursuant to the terms of the Warrant Agreement that the Warrants issued on the Issue Date have been subject) and (ii) Series B Warrants (as defined in the Warrant Agreement) entitling the holders thereof to purchase a number of shares of Common Stock equal to (x) the quotient of (I) the shortfall amount divided by (II) 1,000, multiplied (y) 6.77 (subject to the same adjustments pursuant to the terms of the Warrant Agreement that the Warrants issued on the Issue Date have been subject), in each case rounded up to the nearest whole share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCommon Stock.

Dividends. (a) The Holders of shares Municipal Income Preferred Shares as of Series A Preferred Stock 12:00 noon, New York City time, on the Business Day preceding the applicable Dividend Payment Date, shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofTrustees, out of the assets of the Company funds legally available therefor, (i) cumulative dividends, at the Applicable Dividend Rate, (ii) a Right (as defined in paragraph 3(k)) to receive an Additional Dividend or Additional Dividends in certain circumstances, and (iii) any additional amounts as set forth in paragraph 3(m). Dividends on the Municipal Income Preferred Shares so declared and payable shall be paid in preference to and in priority over any dividends declared and payable on the Common Shares. (b) Dividends on each Municipal Income Preferred Share shall accumulate from its Date of Original Issue and will be payable, when, as and if applicable to such Municipal Income Preferred Shares. (c) Each declared dividend shall be payable semiannually commencing on the 180th day following applicable Dividend payment Date to the Issue Holder or Holders of such Municipal Income Preferred Shares as set forth in paragraph 3(a). Dividends on Municipal Income Preferred Shares in arrears with respect to any past Dividend Payment Date (or the following Business Day if maybe declared and paid at any such payment date is not a Business Day) (each such date being referred time, without reference to herein as a “any regular Dividend Payment Date”, pro rata to the Holders of such shares as of a date not exceeding five Business Days preceding the date of payment thereof as may be fixed by the Trustees. Any dividend payment made on any Municipal Income Preferred Share shall be first credited against the dividends accumulated but unpaid (whether or not earned or declared) at with respect to the earliest Dividend payment Date on which dividends were not paid. (d) Neither Holders nor Beneficial Owners of Municipal Income Preferred Shares shall be entitled to any dividends on the Municipal Income Preferred Shares, whether payable in cash, property or stock, in excess of full cumulative dividends thereon (which include any amounts actually due and payable pursuant to paragraph 3(k), 3(l) or 3(m) of this Part I). Except as provided in paragraph 3(h) of this Part I, neither Holders nor Beneficial Owners of Municipal Income Preferred Shares shall be entitled to any interest, or other additional amount, on any dividend payment on any Municipal Income Preferred Share which may be in arrears. (e) Except as otherwise provided herein, the Applicable Dividend Rate on each Municipal Income Preferred Share for each Dividend Period with respect to such share shall be equal to the lower of the rate per annum that results from implementation of 6% the remarketing procedures described in Part II hereof and the Maximum Dividend Rate. (f) The amount of declared dividends for each Municipal Income Preferred Share payable on each Dividend Payment Date for each 28-day Dividend Period and the Dividend Payment Date or Dates for each Short-Term Dividend Period shall be computed by the Trust by multiplying the Applicable Dividend Rate in effect with respect to dividends payable on such share on such Dividend Payment Date by a fraction the numerator of which shall be the number of days in such Dividend Period such share was outstanding from and including its Date of Original Issue or the preceding Dividend Payment Date, as the case may be, to and including the day preceding such Dividend Payment Date, and the denominator of which shall be 365, then multiplying the amount so obtained by $50,000 and rounding the amount so obtained to the nearest cent. During the Initial Dividend Period and any Long Term Dividend Period, the amount of dividends per share on the Liquidation Preference; provided that, in the event that payable on any Dividend Payment Date shall be computed by multiplying the Applicable Dividend Period Rate by a fraction, the numerator of which shall be the number of days from either the Date of Original Issue, with respect to the First Initial Dividend payment Date, or otherwise from the last Dividend Payment Date, and the denominator of which is 360, multiplying the amount so obtained by$50,000, and rounding the amount so obtained to the nearest cent. (g) No later than 12:00 noon, New York City time, on each Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under Trust shall deposit in same-day funds with the terms Paying Agent the full amount of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or and payable on such Dividend Payment Date and no liability on any Municipal Income Preferred Share. (h) The Applicable Dividend Rate for each Dividend Period commencing during a Non-Payment Period shall be incurred in respect thereof, equal to the Non-Payment Period Rate and instead, such Deferred any Municipal Income Preferred Share for which a Special Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred Period would otherwise have commenced on the first succeeding day of or during a Non-Payment Period shall have a 28-day Dividend Period. Any amount of any dividend due on any Dividend Payment Date on which the Company is not prohibited from declaringfor any Municipal Income Preferred Shares (if, paying and incurring the liability in respect of such Deferred Dividend (andprior to 12:00 noon, for the avoidance of doubtNew York City time, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending Trust has declared such dividend payable on or within three Business Days after such Dividend Payment Date to the Holders who held such Municipal Income Preferred Shares as of 12:00 noon, New York City time, on the day immediately prior to the next Business Day preceding such Dividend Payment Date) or redemption price with respect to any Municipal Income Preferred Shares not paid to Holders when due but paid to such Holders in the same form of funds by 12:00 noon, New York City time, on any of the first three Business Days after such Dividend Payment Date or due date, as the case may be, shall incur a late charge to be paid therewith to such Holders and calculated for such period of non-payment at the Non-Payment Period Rate applied to the amount of such non-payment based on the actual number of days comprising such period divided by 365. Dividends payable If the Trust fails to pay a dividend on a Dividend Payment Date or to redeem any Municipal Income Preferred Shares on the date set for such redemption (otherwise than because it is prevented from doing so by these By-laws or by applicable law), the preceding sentence shall not apply and the Applicable Dividend Rate for the Dividend Period commencing during the Non-Payment Period resulting from such failure shall be the Non-Payment Period Rate. For the purposes of the foregoing and paragraphs 3(g)and 4(g) of this Part I, payment to a person in New York Clearing House(next-day) funds on any Business Day at any time shall be considered equivalent to payment to such person in same-day funds at the same time on the next Business Day, and any payment made after 12:00 noon, New York City time, on any Business Day shall be considered to have been made instead in the same form of funds and to the same person before 12:00 noon, New York City time, on the next Business Day. (i) Except during a Non-Payment Period, by 12:00 noon, New York City time, on the Remarketing Date in the Remarketing at the end of the Initial Dividend Period applicable to a Municipal Income Preferred Share, and by 12:00noon, New York City time, on the Remarketing Date in the Remarketing at the end of each subsequent Dividend Period applicable to a Municipal Income Preferred Share, the Beneficial Owner of such Municipal Income Preferred Share may elect to tender such share or hold such share for the next Dividend Period to the extent provided in Part II hereof. (j) The Trust may, at its sole option and to the extent permitted by law, by telephonic or written notice (a "Request for Special Dividend Period") to the Remarketing Agent, request that the next succeeding Dividend Period for the Municipal Income Preferred Shares be the number of days (other than 28) evenly divisible by seven, and not fewer than seven or more than 364 in the case of a Short Term Dividend Period or one whole year or more but not greater than five years in the case of a Long Term Dividend Period, specified in such notice, provided that the Trust may not give a Request for Special Dividend Period of greater than 28 days (and any such request shall be null and void) unless the Trust has given written notice thereof to Moody's and S&P and unless, with respect to the Municipal Income Preferred Shares, full cumulative dividends, any amounts due with respect to redemptions, and any Additional Dividends payable prior to Holders such date have been paid in full and, for any Remarketing occurring after the initial Remarketing, all shares tendered were remarketed in the last occurring Remarketing. Such Request for Special Dividend Period, in the case of record a Short Term Dividend Period, shall be given on or prior to the fourth Business Day but not more than seven Business Days prior to a Remarketing Date and, in the case of a Long Term Dividend Period, shall be given on or prior to the 14th day but not more than 28 days prior to a Remarketing Date. Upon receiving such Request for a Special Dividend Period, the Remarketing Agent shall determine (i) whether, given the factors set forth below, it is advisable that the Trust issue a Notice of Special Dividend Period for Municipal Income Preferred Shares as contemplated by such Request for Special Dividend Period, (ii) the Optional Redemption Price of the Municipal Income Preferred Shares during such Special Dividend Period and (iii) the Specific Redemption Provisions and shall give the Trust written notice (a "Response") of such determination by no later than the third Business Day prior to such Remarketing Date. In making such determination the Remarketing Agent shall consider (1) existing short-term and long-term market rates and indices of such short-term and long-term rates, (2) existing market supply and demand for short-term and long-term securities, (3) existing yield curves for short-term and long-term securities comparable to the Municipal Income Preferred Shares, (4) industry and financial conditions which may affect the Municipal Income Preferred Shares, (5) the investment objective of the Trust, and (6) the Dividend Periods and dividend rates at which current and potential Beneficial Owners of Municipal Income Preferred Shares would remain or become Beneficial Owners. If the Remarketing Agent does not give the Trust a Response by such third Business Day or if the Response states that given the factors set forth above it is not advisable that the Trust give a Notice of Special Dividend Period, the Trust may not give a Notice of Special Dividend Period in respect of such Request for Special Dividend Period. In the event the Response indicates that it is advisable that the Trust give a Notice of Special Dividend Period, the Trust may by no later than the second Business Day prior to such Remarketing Date give a notice (a "Notice of Special Dividend Period") to the Remarketing Agent, the Paying Agent and to the Securities Depository which notice will specify (i) the duration of the Special Dividend Period, (ii) the Optional Redemption Price as specified in the related Response and (iii) the Specific Redemption Provisions, if any, as specified in the related Response. The Trust shall not give a Notice of Special Dividend Period and, if the Trust has given a Notice of Special Dividend Period, the Trust is required to give telephonic or written notice of its revocation (a "Notice of Revocation") to the Remarketing Agent (in the case of clauses (x) and (y)) and the Securities Depository (in the case of clauses (x) and (y) and (z)) on or prior to the Business Day prior to the relevant Remarketing Date if (x) either the 1940 Act Preferred Shares Asset Coverage is not satisfied or the Trust shall fail to maintain S&P Eligible Assets and ▇▇▇▇▇'▇ Eligible Assets each with an aggregate Discounted Value at least equal to the Preferred Shares Basic Maintenance Amount, in each case on each of the two Valuation Dates immediately preceding the Business Day prior to the relevant Remarketing Date on an actual basis and on a pro forma basis giving effect to the proposed Special Dividend Period (using as a pro forma dividend rate with respect to such Special Dividend Period the dividend rate which the Remarketing Agent shall advise the Trust is an approximately equal rate for securities similar to the Municipal Income Preferred Shares with an equal dividend period), provided that (unless ▇▇▇▇▇'▇ advises the Trust to the contrary), in calculating the aggregate Discounted Value of ▇▇▇▇▇'▇ Eligible Assets for this purpose, the ▇▇▇▇▇'▇ Exposure Period shall be deemed to be one week longer than the ▇▇▇▇▇'▇ Exposure Period that would otherwise apply as of the date of the Notice of Special Dividend Period, (y) sufficient funds for the payment of dividends payable on the immediately succeeding Dividend Payment Date for Municipal Income Preferred Shares have not been irrevocably deposited with the Paying Agent by the close of business on the third Business Day preceding the relevant Remarketing Date or (z) the Remarketing Agent advises the Trust that after consideration of the factors listed above, it is advisable to give a Notice of Revocation. If the Trust is prohibited from giving a Notice of Special Dividend Period as a result of any of the factors enumerated in clause (x), (y) or (z) of the prior sentence or if the Trust gives a Notice of Revocation with respect to a Notice of Special Dividend Period for Municipal Income Preferred Shares, the next succeeding Dividend Period for Municipal Income Preferred Shares will be a 28-day on Dividend Period, provided that if the then current Dividend Period for Municipal Income Preferred Shares is a Special Dividend Period of less than 28 days, the next succeeding Dividend Period will be the same length as the current Dividend Period. In addition, in the event all Municipal Income Preferred Shares tendered for which the Board Trust has given a Notice of Directors Special Dividend Period are not remarketed or a duly authorized committee thereof declares Remarketing for Municipal Income Preferred Shares is not held for any reason, the Trust may not again give a Notice of Special Dividend Period with respect to Municipal Income Preferred Shares (and any such attempted notice shall be null and void) until all Municipal Income Preferred Shares tendered in a subsequent Remarketing with respect to a 28-day Dividend Period have been Remarketed. (k) Simultaneously with the declaration of each dividend payable at the Applicable Dividend Rate to a Holder determined as set forth in paragraph 3(a)above (each, a “Dividend Record Date”). Notwithstanding anything in this Section "Paragraph 3(a) Dividend"), the Trustees shall also declare a dividend to the contrary, and without limiting any other remedy available same Holder consisting of one right (a "Right") to the Company or any other party, dividends shall not accrue or be payable receive an Additional Dividend in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.Paragraph 3(a)

Dividends. (ai) Holders The holders of shares of Series A Kayne Preferred Stock shall be entitled to cumulative receive, prior to and in preference to any declaration or payment of any dividends on any other class or series of capital stock of the Series A Corporation, in respect of each outstanding share of Kayne Preferred Stock, dividends at a rate per annum equal to the Kayne Dividend Rate (as defined below) (the “Kayne Preferred Dividend”), to be paid, at the option of the Corporation, in cash or in a number of additional shares of Kayne Preferred Stock payable semiannually, which dividends (including fractional shares) equal to the quotient obtained by dividing the Kayne Preferred Dividend by the Kayne Preferred Original Issue Price plus any accrued and unpaid dividends. The Kayne Preferred Dividend shall be cumulative, shall accrue daily (whether or not earned or declared by the Board of Directors and whether or a duly authorized committee thereof, out of the assets of the Company not there are funds legally available therefor, ) and shall be payable semiannually commencing on a quarterly basis in arrears on the 180th last day following the Issue Date of each March, June, September and December of each year (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as each, a “Dividend Payment Date”) at ). Notwithstanding the rate per annum of 6% per share on foregoing, after the Liquidation Preference; provided that, in the event that on any Dividend Payment Redemption Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter holders of law or (y) under the terms outstanding shares of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability Kayne Preferred Stock shall be incurred entitled to receive the Kayne Preferred Dividend in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred cash on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable Any dividend not paid on a the Dividend Payment Date shall be payable fully cumulative and shall accrue and compound quarterly from the date of such Dividend Payment Date (whether or not earned or declared and whether or not there are funds legally available therefor) at the applicable Kayne Dividend Rate and shall be in arrears until paid. The “Kayne Dividend Rate” shall be a rate of 8% per annum; provided that, at any time after the declaration of an Event of Default (as defined below) the Kayne Dividend Rate shall be increased to Holders a rate of record 12% per annum, which rate shall increase annually by 100 basis points on each anniversary of the close occurrence of business on such Event of Default; provided that the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Kayne Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends Rate shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendexceed 15% per annum.

Dividends. (a) Commencing on the Issue Date, Holders of shares of outstanding Series A B Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets funds of the Company Corporation legally available therefor, subject to Section 4(f), pari passu with (and shall be payable semiannually commencing on otherwise with the 180th day following same treatment in all respects as that of) the Issue Date Corporation’s Mandatorily Convertible Cumulative Perpetual Preferred Stock, Series C (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment DateSeries C Preferred Stock”) cumulative dividends in arrears at the rate per annum of 615% per share on (i) the Liquidation Preference; provided thatAmount (equivalent to $1,500.00 per annum per share) and (ii) the amount of accrued and unpaid dividends from any prior Dividend Period on each such share of Series B Preferred Stock, payable semi-annually on each Dividend Payment Date beginning on the Dividend Payment Commencement Date until the Conversion Date. Dividends shall be payable, at the option of the Corporation, in cash or in kind through the event issuance of additional shares of Series B Preferred Stock (a “PIK Dividend”). Notwithstanding the foregoing sentence, if due to the Ownership Limit as provided in Section 5(a) below, any outstanding shares of Series B Preferred Stock are not converted on the Conversion Date, each such share of Series B Preferred Stock, while outstanding, shall, upon and following the Conversion Date bear cumulative dividends payable, when, as and if declared by the Corporation’s board of directors, at the same date and in amounts equal to the number of shares of Common Stock into which each share of Series B Preferred Stock is then convertible, multiplied by the dividend declared and payable per share of Common Stock. Dividends will be payable on a Dividend Payment Date to Holders that on any are Record Holders of the applicable Record Date with respect to such Dividend Payment Date, but only to the Company is not permitted extent a dividend has been declared to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Date. If any Dividend Payment Date on which the Company is not prohibited from declaringa Business Day, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)date shall be paid on the next Business Day without adjustment and without interest. The amount Accumulations of dividends on shares of Series B Preferred Stock shall not bear interest. Dividends payable for any period other period that is shorter or longer than a full semiannual dividend period will Dividend Period (based on the number of actual days elapsed during the period) shall be computed on the basis of days elapsed over a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.