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) Holders of shares of 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, either out of funds legally available therefor or through the assets issuance of shares of the Company legally available thereforCompany’s common stock, and the Company shall be payable semiannually accrue, quarterly in arrears on March 31, June 30, September 30, and December 31 of each year, commencing on the 180th day following the Issue earlier of December 31, 2008, or any Conversion Date (or as defined below), cumulative dividends on 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”) Preferred Stock at the rate per annum share (as a percentage of 6% the Stated Value per share on share) equal to five percent (5%) per annum, payable in cash or shares of Common Stock (as defined in Section 7) at the Liquidation Preference; provided thatoption of the Holders. The Company may pay, in at its option, accrued dividends at any time while the event that on Preferred Stock remains outstanding. The Company shall pay all accrued and unpaid dividends within five (5) days following either (a) the conversion of any Dividend Payment Date, or all of the Preferred Stock or (b) the redemption by 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 all of the Board remaining outstanding shares 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)Preferred Stock. The number of shares of Common Stock issuable as payment of dividends hereunder shall equal the aggregate dollar amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will then being paid, divided by the Conversion Price (as defined in Section 5(c)) then in effect. Dividends on the Preferred Stock shall be computed calculated on the basis of a 360-day year consisting year, shall accrue daily commencing the Issuance Date (as defined in Section 7), and shall be deemed to accrue on such date whether or not earned or declared and whether or not there are profits, surplus or other funds of twelve 30-day monthsthe Company legally available for the payment of dividends. Commencing The party that holds the Preferred Stock on an applicable record date for any dividend payment will be entitled to receive such dividend payment and following any other accrued and unpaid dividends which accrued prior to such dividend payment date, without regard to any sale or disposition of such Preferred Stock subsequent to the Meeting End applicable record date but prior to the applicable dividend payment date. Except as otherwise provided herein, if at any time the Company pays less than the total amount of dividends then accrued on account of the Preferred Stock, such payment shall be distributed ratably among the Holders of the Preferred Stock based upon the number of shares then held by each Holder in proportion to the total number of shares of Preferred Stock then outstanding. In order for the Holders to exercise the right to have dividends paid in cash on any Conversion Date, the Holders must indicate such intention in the event Conversion Notice, which notice will remain in effect for subsequent Conversion Notices until rescinded by the Holder in a written notice to such effect that dividends are paid on is addressed to the Company. (b) Notwithstanding anything to the contrary contained herein, the Company may not issue shares of Common Stock in any dividend period with respect to payment of dividends on the Series A Preferred Stock, then a dividend shall be payable Stock (and must deliver cash in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of thereof) if: (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 at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is either insufficient to issue such dividends in shares of Common Stock or the Company has not duly reserved for issuance in respect of such dividends a sufficient number of shares of Common Stock, (ii) such shares are not listed for trading on the Nasdaq SmallCap Market or the OTC Bulletin Board ("OTC BB")(and any other exchange, market or trading facility in which such share of Series A Preferred the Common Stock is then convertiblelisted for trading). For purposes Payment of this dividends in shares of Common Stock is further subject to the provisions of Section 3(a5. (c) So long as any shares of Preferred Stock remain outstanding, neither the Company nor any subsidiary thereof shall, without the consent of the Holders of seventy five percent (75%) of the shares of Preferred Stock then outstanding, redeem, repurchase or otherwise acquire directly or indirectly any Junior Securities (as defined in Section 7), a nor shall the Company directly or indirectly pay or declare any dividend period with or make any distribution upon, nor shall any distribution be made in respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (orof, if there is no preceding Dividend Payment Dateany Junior Securities, the Issue Date) and ending on the day immediately prior nor shall any monies be set aside for or applied to the next Dividend Payment Date. Dividends payable on purchase or redemption (through 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 sinking fund or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(aotherwise) 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 LegendJunior Securities.

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. 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 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 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. (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 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. (ai) Holders of shares The Holder(s) shall be entitled to receive, on each share of Series A Preferred Stock shall be entitled to cumulative dividends on the 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 the assets of the Company any funds legally available thereforfor the payment of dividends, 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 cumulative cash dividends at a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum equal to 8.0% of 6% per share on the Liquidation PreferencePreference (the “Dividend Rate”) in accordance with subdivision 1 of Article FOURTH of the Certificate of Incorporation and this Subdivision 3(d); provided thatprovided, however, that in the event that on any Dividend Payment DateDate there shall be accrued and unpaid dividends for any prior Dividend Period, the Company is not permitted to declare or pay such dividend or incur such liability either Dividend Rate shall equal 8.0% per annum of the sum of (x) as a matter of law or the Liquidation Preference and (y) under the terms amount of all such accrued and unpaid dividends for any loan agreementprior Dividend Periods. (ii) Dividends will accrue and cumulate from the Issue Date and are payable quarterly in arrears on the first day of January, credit agreementApril, guarantyJuly and October (each, or related agreement, such dividend (a “Deferred DividendDividend Payment Date”) shall ), commencing on the first Dividend Payment Date following the Issue Date. If a Dividend Payment Date falls on a day that is not be declared by a Business Day, the Board of Directors, shall not dividends will be paid or payable on such the next Business Day as if it were paid on the Dividend Payment Date and no liability interest will accrue in connection therewith. If dividends on any shares of the Series A Preferred Stock 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 cumulative from a date less than thirty days prior to the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability quarter-yearly dividend payment date in respect of such Deferred Dividend (andshares, for the avoidance of doubt, dividends accrued on such Deferred Dividend shares to such date shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding date but shall be payable on the next following quarter-yearly dividend payment date. (iii) The amount of dividends payable for each full quarterly Dividend Payment Date)Period will be computed by dividing the Dividend Rate by four. The amount of dividends payable for the initial Dividend Period, or any other period that is Dividend Period shorter or longer than a full semiannual dividend period quarterly Dividend Period, will be computed on the basis of the actual number of days elapsed during such Dividend Period over a 360-day year consisting of twelve 30-day months. Commencing on and following year. (iv) Dividends will be paid to the Meeting End Date, Holder(s) as such Holder(s) appear in the event that dividends are paid records of the Corporation at the Close of Business on shares the 15th day of Common Stock the immediately preceding calendar month in any dividend period with respect to which 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 applicable Dividend Payment Date is falls (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 The Dividend Record Date shall apply regardless of whether any particular Dividend Record Date is a Business Day. (v) Dividends on any share of Series A Preferred Stock converted to Common Stock shall cease to accumulate on the Mandatory Conversion Date or any applicable Conversion Date, as applicable. (vi) In case the stated dividends and the amounts payable on liquidation are not paid in full, the shares of the Series A Preferred Stock shall share ratably in the payment of dividends (including accumulations, if any) in accordance with the sums which would be payable on said shares if all dividends were declared and paid in full, and in any distribution of assets other than by way of dividends in accordance with the sums which would be payable on such distributions if all sums payable were discharged in full. (vii) So long as any shares of the Series A Preferred Stock are outstanding, no dividend whatever shall be paid or declared at any time, and no distribution made, on any junior stock (other than in junior stock) nor shall any shares of junior stock be purchased or otherwise acquired for value or redeemed at any time by the Corporation or any subsidiary unless all dividends on the Series A Preferred Stock for all past quarter-yearly dividend periods (other than the first quarter-yearly dividend period for any shares if the dividend on such shares for such period shall not then be payable pursuant to the provisions of Subdivision 3(d)(ii)) shall have been paid and the full dividends thereon for the then current quarter-yearly dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart; provided, however, that the foregoing restriction in this Section 3(aSubdivision 3(d) shall not apply to the contraryacquisition of any junior stock solely in exchange for, or solely out of the proceeds of sale of, any other junior stock. Subject to the foregoing provisions of this Subdivision 3(d), and without limiting to any other remedy further limitations prescribed by the Board of Directors in accordance with subdivision 1 of Article FOURTH of the Certificate of Incorporation, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of Directors may be declared and paid on any junior stock from time to time out of any funds of the Corporation legally available to therefor, and the Company or any other party, dividends Series A Preferred Stock shall not accrue or be payable entitled to participate in respect any such dividends. (viii) The holders 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 shall not be entitled to receive any dividends thereon other than the dividends referred to 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 Legendthis Subdivision 3(d).

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 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) 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. (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 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 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) Holders The holders of shares of Series A 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, out of funds legally available for the payment of dividends, dividends per Preferred Share at a rate equal to the product of (x) the Annual Dividend Rate and (y) the Stated Liquidation Preference Amount. In addition, the holders of Preferred Shares shall be entitled to receive dividends paid or payable on the Common Shares from time to time, if any, whether paid or payable in cash, shares of Capital Stock of the Corporation (including, but not limited to, Common Shares), evidence of its Indebtedness, rights or warrants to subscribe for or purchase any of its securities or any other assets or property, with respect to the number of Common Shares, or portion thereof, into which each Preferred Share is then convertible at the Conversion Price. The amount referred to in the foregoing sentence with respect to each Dividend Period shall be determined as of the applicable Dividend Payment Record Date by multiplying the number of Common Shares, or portion thereof calculated to the fourth decimal point, into which a Preferred Share would be convertible at the opening of business on such Dividend Payment Record Date (based on the Conversion Price then in effect) by the dividend payable or paid for such Dividend Period in respect of a Common Share outstanding as of the record date for the payment of dividends on the Common Shares with respect to such Dividend Period or, if different, with respect to the most recent period for which dividends with respect to the Common Shares have been declared. All dividends payable under the first sentence of this Section 3(a) shall be cumulative from the Issue Date, whether or not in any Dividend Period or Periods there shall be funds of the Corporation legally available for the payment of such dividends, and shall be payable, when, as and if authorized and declared, in arrears on Dividend Payment Dates, commencing on the first Dividend Payment Date after the Issue Date. Each such dividend shall be payable in arrears to the holders of record of the 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. Any Dividend Arrearages may be authorized and declared and paid or payable at any time, without reference to any regular Dividend Payment Date, to holders of record on such date, which shall not be more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. Dividends on the Preferred Shares shall, at the Corporation’s option, on each Dividend Payment Date, either (i) be paid in cash on such Dividend Payment Date or (ii) added to the Stated Liquidation Preference Amount for the purposes of calculating dividends pursuant to this Section 3(a) (until such time as the Corporation declares and no liability shall be incurred pays such dividend in respect thereoffull and in cash, and insteadat which time, such Deferred Dividend dividend shall no longer be declared, become payable and be paid and part of 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, Stated Liquidation Preference Amount for the avoidance purposes of doubt, such Deferred Dividend shall be payable in addition to, calculating dividends pursuant to this Section 3(a)) (any amount that has been added to the Stated Liquidation Preference Amount and not in lieu ofyet paid, any dividend which would ordinarily be payable on such succeeding a “Dividend Payment DateArrearage”). . (b) 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 Preferred Shares shall be computed on the basis of twelve 30-day months and a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Dateyear. (c) All dividends paid with respect to Preferred Shares shall be paid pro rata. (d) So long as any Preferred Shares are outstanding, no dividends, except as described in the event that 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 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 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 Preferred Shares and such class or classes or series of Parity Shares. (e) So long as any 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 Corporation or any Subsidiary) for any consideration (or any moneys 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 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 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 such Parity Shares. (f) In any case where any dividend payment date shall not be a Dividend Payment Date is Business Day, then (notwithstanding any other provision of this Certificate of Designations) payment of dividends need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the dividend payment date; provided, however, that no interest shall accrue on such amount of dividends for the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) from 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 after such 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 Legendpayment date.

Dividends. (a) Holders From and after the Closing Date, each Holder, in preference and priority to the holders of shares all other classes or series of Series A Preferred Stock stock of the Corporation, shall be entitled to cumulative dividends on the Series A receive, with respect to each share, or fraction of a share, of Preferred Stock payable semiannuallythen outstanding and held by such Holder, which dividends accruing on a daily basis, commencing from the date of issuance of such share of Preferred Stock, at the rate of three percent (3%) per annum of the Stated Value per whole share (or proportion thereof with respect to fractional shares) of such series of Preferred Stock (the “Preferred Dividends”). The Preferred Dividends shall be declared by the Board of Directors cumulative, whether or a duly authorized committee thereofnot earned or declared, out of the assets of the Company legally available therefor, shall compound quarterly and shall be payable semiannually commencing paid quarterly in arrears on the 180th last day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (of March, June, September and December in 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 thatyear, in the event that on any Dividend Payment Datecommencing [●], 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 2019. For the avoidance of doubt, dividends shall accrue daily on the Stated Value of each share of Preferred Stock as such Deferred Dividend Stated Value is increased by any payment of Preferred Dividends pursuant to the immediately succeeding sentence and such dividends shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on considered accumulated upon the date scheduled for payment of such succeeding Dividend Payment Date)dividends. The Preferred Dividends shall be paid, at the option of the Corporation, in the form of cash or paid in kind by an increase in the Stated Value of the Preferred Stock, or any combination thereof. (b) In the event that the Corporation shall at any time pay a dividend on or make a distribution in respect of the Common Stock in cash or any other class or series of capital stock of the Corporation, the Corporation shall, at the same time and on the same terms, pay or distribute to each Holder a dividend (or distribution) equal to the dividend (or distribution) that would have been payable or made to such Holder if the shares, or fraction of a share, of Preferred Stock held by such Holder had been converted into Common Stock on the date of determination of holders of Common Stock entitled to receive such dividend or distribution (the “Participating Dividends”). (c) Except as otherwise provided herein, if at any time the Corporation pays less than the total 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 then accumulated with respect to the Series A Preferred Stock, then a dividend such payment shall be payable in respect distributed pro rata among the Holders entitled thereto based upon the Stated Value on all shares of each share of Series A Preferred Stock for held by each 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 LegendHolder.

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. 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. 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) 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. (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) Holders of the issued and outstanding shares of Series A Preferred Stock shall be entitled to cumulative receive 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 with respect to which adjustments to the Conversion Price shall be made in accordance with this Certificate) 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 payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4(a)(i) are paid at the same time to the Holders of the Preferred Stock. (ii) In addition to any dividends pursuant to Section 4(a)(i), dividends on each share of Preferred Stock shall accrue and accumulate on a daily basis, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends, at the Dividend Rate multiplied by the Board Accumulated Amount on such share from and after the Issuance Date of Directors such share until the redemption, conversion or a duly authorized committee thereof, out other cancellation thereof (the “Preferred Dividends”). At the election 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) (Corporation with respect to 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 Preferred Dividend Payment Date, all Preferred Dividends accrued on a share of Preferred Stock since the Company is not permitted to declare or pay such dividend or incur such liability immediately preceding Preferred Dividend Payment Date (as determined in accordance with the remaining provisions of this clause (ii) and clause (iii) below) shall either (x) 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 so authorized and declared by the Board of Directors, shall not be paid or payable in cash to the holder thereof on such Preferred Dividend Payment Date (any Preferred Dividend or portion of a Preferred Dividend paid in such manner, a “Cash Dividend”), or (y) to the extent not so paid in cash in accordance with the foregoing clause (x) automatically become Compounded Dividends and no liability added to the Accumulated Amount for such share as of such Preferred Dividend Payment Date. The amount of Preferred Dividends accruing with respect to any share of Preferred Stock for any day shall be incurred determined by dividing (x) the Implied Quarterly Dividend Amount as of such day by (y) the actual number of days in the Payment Period in which such day falls; provided, however, that if during any Payment Period the Dividend Rate is increased, then after the date of such increase the amount of Preferred Dividends accruing with respect thereof, and instead, such Deferred Dividend to any share of Preferred Stock for any day shall be declared, become determined by dividing (x) the Implied Quarterly Dividend Amount (recalculated to take into account such increased Dividend Rate) by (y) the actual number of days in such Payment Period. The amount of Preferred Dividends payable with respect to any share of Preferred Stock for any Payment Period shall equal the sum of the daily Preferred Dividends amounts calculated in accordance with the 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 (with $.005 being rounded upward). (iii) Any election by the Corporation to pay a Cash Dividend with respect to any Payment Period shall be applied consistently to all Preferred Dividends paid and the liability in to all Holders with respect thereof be incurred on the first succeeding Dividend to such Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for Period. For the avoidance of doubt, it is understood that no Preferred Dividends may be declared and paid in securities or otherwise “in kind.” (iv) Each Participating Dividend or Preferred Dividend shall be paid pro rata to the Holders of shares of Preferred Stock entitled thereto based on the ownership of such Deferred Preferred Stock. Each Participating Dividend or Preferred 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 to the Holders of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed Preferred Stock as they appear 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 Register at the close of business on the day on which record date designated by the Board of Directors or a duly authorized committee thereof declares the dividend payable for such dividends (eacheach such date, a “Dividend Payment Record Date”), which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the 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. (b) Upon the occurrence of a Triggering Event, the Dividend Rate shall increase to the Noncompliance Additional Rate from and including the date on which the Triggering Event shall occur and be continuing through but excluding the date on which all then occurring Triggering Events are no longer continuing. Notwithstanding anything in The Dividend Rate shall not be increased further pursuant to this Section 3(a4(b) for a subsequent Triggering Event occurring while the Noncompliance Additional Rate is in effect pursuant to this Section 4(b). (c) At any time during which a Triggering Event shall occur and be continuing, without the contraryconsent of the Holders by Majority Vote, and without limiting any other remedy available to the Company or any other party, no dividends shall not accrue 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 payable 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 respect 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) (other than repurchases of shares initially issued of Common Stock from applicable employees, officers or directors of the Corporation, in the ordinary course of business, following such employees’, officers’ and directors’ termination of employment or engagement with the Corporation and its Subsidiaries). Without limiting the foregoing, without the consent of the Holders by Majority Vote, the Corporation shall not (i) declare, pay or set aside for payment any Holder who is contractually obligated to appear and vote dividends or distributions upon any Junior Securities or (ii) repurchase, redeem or otherwise acquire any Junior Securities (other than repurchases of shares of Common Stock from employees, officers or directors of the Corporation in favor the ordinary course of business) for any 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, the Corporation, in its good faith judgment, reasonably determines that (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 Accumulated Amount and the aggregate Interim Accrued Dividends of the Preferred Stock), (B) immediately after the taking of such action, the Corporation would be able to pay all of its debts (including, for this purpose, the aggregate Accumulated Amount and the aggregate Interim Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise 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 Legendcompliance with applicable Law.

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 To the extent necessary to satisfy the requirements of Section 857(a)(1) of the Code for the taxable year of ICH ending at the Effective Time, ICH shall declare and pay a dividend (the "Final ICH Dividend") to holders of shares of Series A Preferred Stock ICH Stock, the record and payment dates 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 before the close of business on the last business day prior to the Effective Time, in an amount sufficient to permit ICH to satisfy such requirements. If ICH determines it necessary to declare the Final ICH Dividend, and such Final ICH Dividend is not paid in the ordinary course of business, consistent with past practice, as provided in Section 5.2(a)(i) hereof, it shall notify ACT at least ten days prior to the date for the ICH Stockholder Meeting (as defined below), and ACT shall declare a dividend per ACT Common Share, the record date for which shall be the close of business on the last business day prior to the Effective Time, in an amount per share equal to the quotient obtained by dividing (x) the Final ICH Dividend per share of ICH Stock paid by ICH by (y) the Exchange Ratio. (b) No dividends or other distributions with respect to ACT Common Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the ACT Common Shares represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.5, in each case until the surrender of such Certificate in accordance with this Article II. Subject to the effect of applicable escheat laws, as soon as reasonably practicable following surrender of any such Certificate there shall be paid to the holder of such Certificate, without interest, (i) at the time of such surrender, the amount of any cash payable in lieu of any fractional ACT Common Share to which such holder is entitled pursuant to Section 2.5 and (ii) if such Certificate is exchangeable for one or more whole ACT Common Shares, (x) at the Board time of Directors such surrender the amount of dividends or other distributions with a duly authorized committee thereof declares record date after the dividend Effective Time theretofore paid with respect to such whole ACT Common Shares and (y) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender and with a payment date subsequent to such surrender payable with respect to such whole ACT Common Shares. (each, a “Dividend Record Date”). c) Notwithstanding anything in any provision of this Section 3(a) Article II to the contrary, dividends shall be paid by ICH pro rata with respect to each outstanding share of beneficial interest within a particular class of ICH Stock and without limiting any other remedy available dividends shall be paid by ACT pro rata with respect to each outstanding share of beneficial interest of ACT within a particular class in accordance with the requirements of Section 562(c) of the Code (including, as necessary, by transferring cash to an appropriate paying agent), and no dividend payments shall accrue to the Company benefit of ACT or ICH for failure of a former holder of ICH Stock to surrender any other party, dividends shall not accrue or be payable in respect certificate representing any share 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 LegendICH Stock.

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 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) 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) 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 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. 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 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. Declare, make or pay any Dividend Payments on any shares of any class of Capital Stock, either directly or indirectly, except that: (a) Holders Qualified Subsidiaries may pay Dividend Payments pro rata to the holders of their Capital Stock (giving effect to relative preferences and priorities); (b) Borrower and its Qualified Subsidiaries may pay or make Dividend Payments or distributions to any holder of its Capital Stock in the form of additional shares of Series A Preferred Capital Stock of the same class and type; (c) Borrower and Holdings may make Dividend Payments so long as the proceeds thereof shall ultimately be used by Parent to make repurchase shares of Capital Stock of Parent owned by former, present or future employees of Borrower or its Qualified Subsidiaries or their assigns, estates and heirs; provided that the aggregate amount of Dividend Payments made by Borrower or Holdings pursuant to this paragraph (c) shall not in the aggregate exceed (i) $1,000,000 in any fiscal year or (ii) $5,000,000 during the term of this Agreement, plus any amounts contributed to Borrower as a result of resales of such repurchased shares of Capital Stock; (d) Holdings and Borrower may pay or make Dividend Payments or distributions during a period when such entity is treated as a partnership for federal, state or local income tax purposes and after such period, to the extent relating to the liability for such period, in an aggregate amount not to exceed the taxable income, calculated in accordance with applicable law, of such entity with regard to such period multiplied by the highest combined published federal, state and local income tax rate applicable to corporations, which rate shall be entitled certified to cumulative dividends the Administrative Agent on an annual basis (or more frequently if the Series A Preferred Stock payable semiannually, which dividends shall be declared tax rate changes during any annual period) by the Board of Directors or a duly authorized committee thereof, out Borrower in an Officer’s Certificate of the assets Borrower executed on its behalf by a Responsible Officer of the Company legally available thereforBorrower; (e) Holdings and its Subsidiaries may pay or make Dividend Payments or distributions to one or more indirect parent companies to enable them to pay expenses incurred in the ordinary course of business; provided the aggregate amount of all Dividend Payments or distributions made pursuant to this subsection 8.11(e) shall not exceed $1,000,000 in any fiscal year; (f) Borrower may pay or make Dividend Payments or distributions to Holdings to enable Holdings to make interest payments on Holdings High Yield Notes as required; provided that on a Pro Forma Basis after giving effect to such Dividend Payments or distributions, Holdings would be in compliance with subsection 8.9(A), (B), (C) and shall be payable semiannually commencing (D); provided, further, that no Default or Event of Default exists and is continuing at the time of such Dividend Payments or distributions; and (g) on or before the 180th day following after the Issue Date Post Closing Certificate (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, defined in the event that Asset Purchase Agreement) becomes conclusive, final and binding 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) Borrower under the terms of Asset Purchase Agreement and any loan agreementNet 3.3 Reduction Proceeds have been received by Borrower, credit agreement, guaranty, Borrower and its Subsidiaries may pay or related agreement, such dividend make Dividend Payments or distributions to Holdings (a “Deferred Dividend”and Holdings may pay or make Dividend Payments or distributions to its equity securityholders) 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 not to exceed the greater lesser of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph Net 3.3 Reduction Proceeds and (ii) $20,000,000 plus 33.33% of the product amount of such Net 3.3 Reduction Proceeds in excess of $20,000,000; provided that (Ax) the aggregate dividends payable per share no Default or Event of Common Stock in Default exists before or after giving effect to any Dividend Payments or distributions made pursuant to this subsection 8.11(g) and (y) after giving pro forma effect to 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 DatePayments or distributions, 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 Available Revolving Credit Commitment is 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 Legendless than $15,000,000.

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 of shares of 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 thereof, out of the assets funds of the Company Corporation legally available thereforfor payment, and cumulative dividends at the Dividend Rate (“Dividends”). Dividends on the Preferred Stock 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”) paid quarterly in arrears at the rate per annum Dividend Rate in cash or, at the election of 6% per share on the Liquidation Preference; provided thatCorporation, subject to receipt of any necessary Shareholder Approval (to the extent necessary), in the event that on any Dividend Payment Date, the Company is not permitted Common Stock as provided 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”) 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 Section 4. For the avoidance of doubt, unless prohibited by applicable law, (i) the Board shall not fail to declare such Deferred Dividend Dividends on Preferred Stock and (ii) notwithstanding anything contained herein to the contrary, dividends on the Preferred Stock shall accrue for all fiscal periods during which the Preferred Stock is outstanding, regardless of whether the Corporation has earnings in any such period, whether there are funds legally available for the payment of such dividends and whether or not such dividends are authorized or declared. Dividends shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable arrears on such succeeding each Dividend Payment Date to the holders of record of Preferred Stock as they appear on the Corporation’s stock register at the close of business on the relevant Dividend 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 such period) shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following . (b) No dividend shall be declared or paid upon, or any sum set apart for the Meeting End Datepayment of dividends upon, in any Outstanding share of the event that dividends are paid on shares of Common Preferred Stock in with respect to any dividend period with respect to unless all dividends for all preceding dividend periods have been declared and paid, or declared and a sufficient sum has been set apart for the Series A payment of such dividend, upon all Outstanding shares of Preferred Stock, then . (c) No dividends or other distributions (other than a dividend shall or distribution payable solely in shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock) and cash in lieu of fractional shares) may be payable in respect 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 each share any Parity Stock or Junior Stock) by the Corporation or on behalf of Series A Preferred Stock for such period in an amount equal to the greater of Corporation (except by (i) conversion into or exchange for shares of Parity Stock or Junior Stock (in the amount otherwise payable case of Parity Stock) or Junior Stock (in respect the case of such share Junior Stock) and cash solely in lieu of Series A Preferred fractional shares of Parity Stock or Junior Stock (in accordance with the foregoing paragraph case of Parity Stock) or Junior Stock (in the case of Parity Stock) and (ii) payments in connection with the product satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (Aand payment of any corresponding requisite amounts to the appropriate governmental authority), unless all Accumulated Dividends (as of the date of such declaration, payment, redemption, purchase or acquisition) shall have been or contemporaneously are declared and paid in cash. Further, no dividends or other distributions (other than a dividend or distribution payable solely in shares of Junior Stock and cash in lieu of fractional shares) may be declared, made or paid, or set apart for payment upon, any Junior Stock (except payments in connection with the aggregate 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) unless the payment of the dividend in respect of the Preferred Stock for the most recent dividend period ending on or prior to the date of such declaration or payment has been declared and paid in cash or declared and a sum of cash sufficient for the payment thereof has been set aside for such payment. Notwithstanding the foregoing, if full dividends payable 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 the 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 Common Preferred Stock in and such dividend period times Parity Stock bear to each other at the time of declaration. (Bd) the number Holders of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends (it being understood that this Section 3(d) shall not limit the Corporation’s obligations pursuant to Section 3(a), a dividend period with respect to a . (e) If any Dividend Payment Date falls on a day that is not a Business Day, the period commencing required payment will be on the preceding 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. (f) The holders of shares of 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 (or, if there is no preceding notwithstanding the conversion of such shares in accordance with Sections 8 or 9 following such Dividend Record Date or the Corporation’s default in payment of the dividend due on such Dividend Payment Date. In the case of conversion of shares of Preferred Stock pursuant to Section 5 following the close of business on a Dividend Record Date but prior to the corresponding Dividend Payment Date, the Issue Dateholders of such shares shall not be entitled to receive the corresponding dividend payment following conversion (it being understood that the value thereof is included in the conversion terms set forth in Section 5). (g) 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) herein to the contrary, and without limiting any other remedy available to the Company extent that any Holder’s right to participate in any Dividend would result in the Holder exceeding the Beneficial Ownership Limitation or any other partythe Permitted Percentage Limitation, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated then the rights appurtenant to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order such Dividend to effect the Stockholder Approval (or whose transferor Holder was so obligated) if which such Holder is entitled pursuant hereto shall be limited to the same extent provided in Section 11 hereof. (h) Except as provided in Section 8 the Corporation shall make no payment or such transferor Holder allowance for unpaid dividends, whether or not in arrears, on converted shares of Preferred Stock or for dividends on the Affiliates shares of either) fails so to appear and vote in favor. Any shares Common Stock issued to such Holders shall bear the Stockholder Approval Legendupon conversion.

Dividends. Cinergy shall not, nor shall it permit any of its subsidiaries to, (ai) Holders of shares of Series A Preferred Stock shall be entitled to cumulative declare, set aside or pay any 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 make other distributions in respect of any of its capital stock or share capital, except: (A) that Cinergy may continue the declaration and payment of regular quarterly cash dividends on Cinergy Common Stock, not to exceed $0.48 per share, with usual record and payment dates for such Deferred Dividend (anddividends in accordance with past dividend practice; provided, for that if the avoidance of doubt, such Deferred Dividend shall be payable in addition to, Cinergy Effective Time does not occur between a record date 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 payment date of a 360-day year consisting regular quarterly dividend, a special dividend may be declared and paid in respect of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Cinergy Common Stock in any dividend period with respect to the Series A Preferred Stockquarter in which the Cinergy Effective Time occurs with a record date in such quarter and on or prior to the date on which the Cinergy Effective Time occurs, then a which dividend shall be payable in respect of each share of Series A Preferred Stock for such period in does not exceed an amount equal to the greater product of (i) a fraction the amount otherwise payable (x) numerator of which is equal to the number of days between the last payment date of a regular quarterly dividend and the record date of such special dividend (excluding such last payment date but including the record date of such special dividend) and (y) the denominator of which is equal to the number of days between the last payment date of a regular quarterly dividend and the same calendar day in the third month after the month in which such last payment date occurred (excluding such last payment date but including such same calendar day), multiplied by (ii) the then permitted quarterly dividend per share, and (B) for the declaration and payment of dividends by a direct or indirect wholly-owned subsidiary solely to its parent, or by a direct or indirect partially owned subsidiary of Cinergy (provided that Cinergy or the Cinergy subsidiary receives or is to receive its proportionate share of such dividend or distribution), and (C) for the declaration and payment of regular cash dividends with respect to preferred stock of Cinergy's subsidiaries outstanding as of the date of the Agreement or permitted to be issued under the terms of this Agreement, and (D) to the extent advisable in the exercise of the fiduciary duties of the Board of Directors of Cinergy, for the declaration and payment of a customary share purchase rights plan, provided, that, (1) Cinergy shall provide Duke prior notice of any such declaration or payment and (2) in connection with any such declaration or payment, the Board of Directors of Cinergy and Cinergy shall cause (x) this Agreement and the transactions contemplated hereby to not result in a "Distribution Date" (as such term may be defined in any such share purchase rights plan) or similar event under such share purchase rights plan and (y) any such share purchase rights plan to be inapplicable in all respects to this Agreement, the Duke Merger, the Cinergy Merger and the other transactions contemplated hereby; and (ii) split, combine, reclassify or take similar action with respect to any of its capital stock or share capital or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or comprised in its share capital, (iii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or (iv) except as disclosed in Section 4.01(c)(iv) of the Cinergy Disclosure Letter, directly or indirectly redeem, repurchase or otherwise acquire any shares of its capital stock or any Option with respect thereto except: (A) in connection with intercompany purchases of capital stock or share capital, or (B) for the purpose of Series A Preferred funding the Cinergy Employee Stock Option Plans or employee stock ownership or dividend reinvestment and stock purchase plans, or (C) mandatory repurchases or redemptions of preferred stock of Cinergy's subsidiaries 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 Legendterms thereof.

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) 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. (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 Subject to the preferential rights of shares the holders of any Senior Shares, the holders of any Series A Preferred Share shall be entitled to receive, when, as, and if authorized by the Board of Directors and declared by the Corporation, out of funds legally available for that purpose, dividends payable in cash in an amount per Share equal to 6.0% of the liquidation preference per annum (equivalent to $60.00 per Share per annum), except as provided in Sections 3(b), 3(c) and 3(d) hereof. Such dividends shall begin to accrue and shall be fully cumulative from the Issue Date of such Series A Preferred Share, whether or not in any Dividend Period or Periods there shall be funds of the Corporation legally available for the payment of such dividends, and shall be payable quarterly, when, as and if authorized by the Board of Directors and declared by the Corporation, in arrears on Dividend Payment Dates, commencing on the first Dividend Payment Date after the first Issue Date. Each such dividend shall be payable in arrears to the holders of record of Series A Preferred Stock shall be entitled to cumulative Shares, as they appear on the stock records of the Corporation on the last day of the calendar quarter, whether or not a Business Day, immediately preceding the quarter in which the applicable Dividend Payment Date falls. Accrued and unpaid dividends on the Series A Preferred Stock payable semiannually, which dividends shall Shares for any past Dividend Periods may be declared by the Board of Directors or a duly authorized committee thereofand paid at any time and for such interim periods, 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 without reference to 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 regular Dividend Payment Date, to holders of record on such date, not less than ten (10) nor more than fifty (50) days preceding the Company is not permitted to declare or pay such dividend or incur such liability either (x) payment date thereof, 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 fixed by the Board of Directors. Notwithstanding anything contained herein to the contrary, dividends on the Series A Preferred Shares shall accrue whether or not the Corporation has Available Cash, whether or not there are funds legally available for the payment of such dividends, and whether or not such dividends are authorized or declared. (b) If all of the Series A Preferred Shares selected for redemption pursuant to Section 6 are not redeemed by the Corporation in accordance with the terms of Section 6, then the annual dividend rate for the Series A Preferred Shares will increase to 12.0% of the liquidation preference per annum (equivalent to $120 per Share per annum) beginning on the calendar day immediately following the redemption date (as determined in accordance with Section 6(c)); provided, however, that such 12.0% dividend rate shall not apply unless and until the aggregate number of Series A Preferred Shares selected for redemption pursuant to Section 6 that are not redeemed by the Corporation in accordance with the terms of Section 6 constitute 10.0% or more of all outstanding Series A Preferred Shares. (c) If, at any time following [●], 2020, dividends on any Series A Preferred Shares shall be paid in arrears for more than two (2) Dividend Periods, whether or payable not consecutive, the then-applicable annual dividend rate for the Series A Preferred Shares will increase beginning on such date by 3.0% of the liquidation preference per annum (equivalent to an additional $30 per share per annum). (d) The amount of dividends payable for each full Dividend Payment Date and no liability Period for the Series A Preferred Shares shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and computed by dividing 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 then-applicable annual dividend which would ordinarily be payable on such succeeding Dividend Payment Date)rate by four. The amount of dividends payable for the Series A Preferred Shares for any other period that is shorter or longer than a full semiannual dividend period will partial Dividend Period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day (12) thirty (30)-day months. Commencing on and following the Meeting End DateHolders of Series A 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 Series A Preferred Shares. Except as set forth in Section 3(c), 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 Shares that may be in arrears. (e) So long as any Series A Preferred Shares are outstanding, no full 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 Payment on the Series A Preferred Shares for all past Dividend Periods terminating on or prior to the dividend payment date on such class or series of Parity Shares. When dividends are not paid in full (or a sum sufficient for such full payment is not Set Apart for Payment), as aforesaid, all dividends declared upon the Series A 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 A Preferred Shares and accumulated and unpaid on such Parity Shares. (f) So long as any Series A Preferred Shares are outstanding, no dividends (other than dividends or distributions paid solely in shares of, or options, warrants or rights to subscribe for or purchase shares of, Junior Shares) shall be declared or paid or Set Apart for Payment or other distribution declared or made upon Junior Shares, nor shall any Junior Shares be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of Common Stock Shares made for purposes of an employee incentive or benefit plan of the Corporation or any subsidiary) for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any Junior Shares) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Shares), unless in each case (i) the full cumulative dividends on all outstanding Series A Preferred Shares and any dividend period other Parity Shares of the Corporation shall have been paid or declared and Set Apart for Payment for all past Dividend Periods with respect to the Series A Preferred Stock, then a Shares and all past dividend shall be payable in periods with respect of each share of Series A Preferred Stock for to 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 Parity Shares and (ii) sufficient funds shall have been paid or declared and Set Apart for Payment of the product of (A) dividend for the aggregate dividends payable per share of Common Stock in such dividend period times (B) current Dividend Period with respect to 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 Shares and the current dividend period with respect to a Dividend Payment Date is the period commencing such Parity Shares. Any dividend payment on the preceding Dividend Payment Date Series A Preferred Shares shall first be credited against the earliest accrued but unpaid dividend due which remains payable. (or, if there is no preceding Dividend Payment Date, the Issue Dateg) and ending No distributions on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date Series A Preferred Shares shall be payable to Holders of record on the close of business on the day on which authorized by the Board of Directors of the Corporation or paid or Set Apart for Payment by the Corporation at such time as the terms and provisions of any material agreement of the Corporation for Indebtedness, prohibits such declaration, payment or Set Apart for Payment or provides that such declaration, payment or Set Apart for Payment would constitute a breach thereof or a duly authorized committee thereof declares default thereunder, or if such declaration or payment shall be restricted or prohibited by law. In determining whether a distribution (other than upon voluntary or involuntary liquidation), by dividend, redemption or other acquisition of shares of capital stock of the dividend payable Corporation or otherwise, is permitted under the MGCL, amounts that would be needed, if the Corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of shares of Series A Preferred Shares shall not be added to the Corporation’s total liabilities. (eachh) Anything in these terms of the Series A Preferred Shares to the contrary notwithstanding, a “Dividend Record Date”). Notwithstanding anything nothing in this Section 3(a3 shall prevent the creation, authorization or issuance of up to $200,000 in the aggregate (as determined based upon the aggregate offering price), or purchase or acquisition by the Corporation, of Series A Preferred Shares (or Senior Shares or Parity Shares) 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 preserve the Stockholder Approval (qualification of the Corporation as a real estate investment trust for federal and/or state income tax purposes or whose transferor Holder was so obligated) if such Holder (to comply with any applicable listing or such transferor Holder continued listing requirements of any national securities exchange or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendautomated quotation system.

Dividends. (a) Holders From and after the date of shares issuance of any share of the Series A B Preferred Stock, a cumulative dividend shall accrue, whether or not declared by the board of directors of this Corporation and whether or not there are funds legally available for the payment of dividends, on a daily basis in arrears at the rate of 8.0% per annum on the sum of the Series B Original Issue Price (as defined below) plus all unpaid accrued and accumulated dividends thereon. All accrued dividends on any share of the Series B Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallypaid in cash only when, which dividends shall be as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets funds legally available therefor or upon a liquidation or redemption 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 B Preferred Stock in accordance with the foregoing paragraph provisions of this Certificate of Designation (a); provided, that to the extent not paid on the fifth (5th) calendar day after the last day of each month (each such date, a "Series B Dividend Payment Date"), all accrued dividends on any share of the Series B Preferred Stock shall accumulate and compound on the applicable Series B Dividend Payment Date whether or not declared by the board of directors of this Corporation and shall remain accumulated, compounding dividends until paid pursuant hereto or converted pursuant to this Certificate of Designation. All accrued and accumulated dividends on the shares of the Series B Preferred Stock as accrued pursuant to this Certificate of Designation (a) shall be prior and in preference to any dividend on any other series of preferred stock or the Common Stock and (b) shall be fully declared and paid before any dividends are declared and paid, or any other distributions or redemptions are made, on any other series of preferred stock or the Common Stock, other than to declare or pay any dividend or distribution payable on the Common Stock in shares of Common Stock. This Corporation may elect to pay dividends for any month with a paid-in-kind election ("PIK") if (i) the issuance of the shares of Common Stock issuable further to the PIK has been registered pursuant to the Securities Act and such registration remains effective, (ii) this Corporation is then in compliance with all listing requirements of the product of Nasdaq Capital Market and (Aiii) the aggregate average daily trading dollar volume of this Corporation’s Common Stock for ten (10) trading days in any period of twenty (20) consecutive trading days on the Nasdaq Capital Market is greater than One Million Five Hundred Thousand Dollars ($1,500,000). (b) Any dividends payable per share or distributions, other than dividends or distributions accruing or paid on shares of the Series B Preferred Stock pursuant to this Certificate of Designation, shall be distributed among all holders of Common Stock and preferred stock in such dividend period times (B) proportion to the number of shares of Common Stock into which that would be held by each such share holder if all shares of Series A Preferred preferred stock were converted to Common Stock is at the then convertible. For purposes of this Section 3(a), a dividend period with respect effective conversion rate without regard to a Dividend Payment Date is the period commencing any limitations 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 conversion of the Company preferred stock contained in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates Certificate of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendIncorporation.

Dividends. (a) Holders i. The holders of Serial Preferred Stock of any series shall be entitled to receive, when and as declared by the Board of Directors, out of surplus or net profits legally available therefor, cumulative dividends at the rate of dividend fixed by the Board of Directors for such series as hereinbefore provided, and no more, payable quarter yearly on the first days of January, April, July and October in each year. The dividends on any shares of Series A Serial Preferred Stock shall be cumulative from such date as shall be fixed for that purpose by the Board of Directors prior to the issue of such shares or, if no such date shall be so fixed by the Board of Directors, from the quarter yearly dividend payment date next preceding the date of issue of such shares. ii. The holders of Class B Serial Preferred Stock of any series 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 any authorized committee thereof, 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”) cumulative dividends at the rate per annum of 6% per share dividend fixed by the Board of Directors for such series including any such rate which may be reset or recalculated from time to time pursuant to procedures or formulas established therefor by the Board of Directors, and no more; provided, however, that no dividend shall be declared or paid on the Liquidation Preference; provided thatClass B Serial Preferred Stock so long as any of the Serial Preferred Stock remains outstanding, in unless all quarter yearly dividends accrued on the event that Serial Preferred Stock and the dividend thereon for the current quarter yearly dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart. The dividends on any Dividend Payment Dateshares of Class B Serial Preferred Stock shall be cumulative from such date as shall be fixed for that purpose by the Board of Directors prior to the issue of such shares or, if no such date shall be so fixed by the Company is Board of Directors, from the dividend payment date for such series next preceding the date of issue of such shares. If full cumulative dividends on shares of a series of Class B Serial Preferred Stock have not permitted been paid or declared and a sum sufficient for the payment thereof set apart, dividends thereon shall be declared and paid pro rata to declare or pay the holders 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 agreement, such dividend (a “Deferred Dividend”) series entitled thereto. Accrued dividends shall not bear interest. iii. The holders of Common Stock shall be entitled to receive dividends, when and as declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and provided, however, that 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 declared or paid on the Common Stock so long as any of each share the Preferred Stock remains outstanding, unless all dividends accrued on all classes of Series A Preferred Stock and the dividend on Serial 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 current quarter yearly dividend period times (B) shall have been paid or declared and a sum sufficient for 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 payment 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 Legendset apart.

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 Trust Preferred Stock Securities shall be entitled to cumulative dividends receive cash distributions at a rate per annum of [__] of the stated liquidation preference of $[__] per Trust Preferred Security. Dividends on the Series A Trust Preferred Stock Securities will accumulate from the date of initial issuance or the last Dividend Date (whichever is later) and will be payable semiannually[quarterly] in arrears, which dividends on [__],[__],[__] and [__] of each year, commencing on [__] if, as and when funds available for payment are held by the Property Trustee in the Property Account. Dividends on the Trust Preferred Securities will not be cumulative unless otherwise specified in a supplement, schedule or an amendment hereto. If the Trust Preferred Securities are in the form of a Global Certificate, the record date for payment of Dividends will be one Business Day prior to the relevant Dividend Date. If the Trust Preferred Securities are in the form of Definitive Trust Preferred Security Certificates, the record date for payment of Dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out 15th day of the assets of month in which the Company legally available therefor, and shall be payable semiannually commencing on relevant Dividend Date falls. In the 180th day following the Issue event that any Dividend Date (or the following Business Day if any such payment date is not a Business Day) (each , payment of such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share Dividends shall be made on the Liquidation Preference; provided next succeeding day which is a Business Day (without any interest or other payment in respect of any such delay) except that, if such Business Day falls 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 agreementnext succeeding calendar year, 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 payment 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 made on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability immediately preceding Business Day (without any reduction of interest or other payments 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 Dateearly payment). The amount of dividends Dividends payable for any other period that is shorter or longer than a full semiannual dividend period Dividend Period will be computed on the basis of a 360-day year consisting of twelve 30-day months, and for any Dividend Period shorter than a three month period, on the basis of the actual number of days elapsed. Commencing Amounts available to the Trust for Dividends to the Holders of the Trust Preferred Securities will be limited to payments received by the Trust from the Company on the Company Securities (which payments shall 37 include, but not be limited to, distributions made on the Company Securities pursuant to the Company Securities Guarantee and following the Meeting End DateContingent Distribution) or from the Guarantor pursuant to the Company Securities Guarantee paid by the Guarantor to the Property Trustee. Dividends on the Company Securities will be paid only if, as and when declared in the event that sole discretion of the Company or deemed declared under any of the Guarantees. (b) The right of Holders to receive dividends is noncumulative unless otherwise specified in a supplement, schedule or an amendment hereto. Accordingly, if the Property Trustee does not receive a dividend payment on the Company Securities in respect of any Dividend Period, Holders shall have no right to receive a dividend in respect of such Dividend Period, and the Trust shall have no obligation to pay a dividend in respect of such Dividend Period, whether or not 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 declared payable in respect of each share of Series A Preferred Stock for such period in an amount equal any future Dividend Period. (c) If and to the greater of extent that the Company makes a distribution (iincluding, without limitation, the Contingent Distribution, if any) on the Company Securities held by the Property Trustee or the Guarantor makes a payment under the Company Securities Guarantee (the amount otherwise payable of any such distribution or guarantee payment being a "Payment Amount"), the Trust shall and the Property Trustee is directed, to the extent funds are available for that purpose, to make a Pro Rata distribution of the Payment Amount to the Holders; provided however that, in the case of the Contingent Distribution only, the amount of payment to any Holder shall be reduced by the amount that such Holder has actually received in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) same claim under 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 LegendTrust Securities Guarantee.

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) 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. (ai) From the Issue Date thereof, (A) the Holders of the outstanding shares of Series A Convertible Preferred Stock shall be entitled to cumulative receive, when, as and if declared by the Board of Directors, out of funds legally available therefor, dividends on the Series A each share of Convertible Preferred Stock at a rate per annum equal to, except as set forth below, 8.0% of the Liquidation Amount per share of the Convertible Preferred Stock and (B) in the event that the Corporation shall declare a dividend or make any other distribution (including, without limitation, in cash, in Capital Stock (which shall include, without limitation, any options, warrants, convertible securities or other rights to acquire Capital Stock of the Corporation, whether or not pursuant to a shareholder rights plan, "poison pill" or similar arrangement) or other property or assets) on or with respect to shares of any class of Common Stock of the Corporation, then the Board of Directors shall declare, and the Holder of each share of Convertible Preferred Stock shall be entitled to receive in respect of each share of Convertible Preferred Stock, a dividend or distribution in an amount equal to the amount of such dividend or distribution received by a holder of the number of shares of Common Stock for which such share of Convertible Preferred Stock is convertible on the date of the payment of such dividend to holders of Common Stock. All dividends provided for in clause (A) above shall be cumulative, whether or not earned or declared, accruing on a daily basis from the Issue Date of such shares; provided that not less than one-half (1/2) of the amount of such dividends shall be payable semiannually(provided that such cash payment is not then prohibited under the DGCL, any other applicable law, or the terms of any Covered Indebtedness) in cash quarterly in arrears on each Dividend Payment Date, commencing on March 31,2004; provided further, that (x) if as of any Dividend Payment Date the Corporation shall have failed to pay in cash at least one-half (1/2) of the dividends due and payable on such date, including, without limitation, if such dividends have not been declared by the Board of Directors or if funds therefor are not legally available or are not permitted by applicable law or any Covered Indebtedness (a "Payment Default"), then the dividend rate on each share of Convertible Preferred Stock shall increase to a rate per annum equal to 10.0% of the Liquidation Amount per share of the Convertible Preferred Stock effective as of the first day of the Dividend Period for such Dividend Payment Date to which such Payment Default relates, (y) if any Protective Default shall have occurred, the per annum dividend rate shall increase to a rate per annum equal to 10.0% of the Liquidation Amount per share of the Convertible Preferred Stock effective on the date of such Protective Default and continuing during the continuance of such Protective Default and (z) if any shares of Convertible Preferred Stock shall remain outstanding (an "Outside Date Default") on September 30, 2009 (the "Outside Date"), the dividend rate on each share of Convertible Preferred Stock shall increase by 1.0% per annum on the Outside Date and shall increase by an additional 1.0% per annum on each 30th calendar day thereafter up to a maximum dividend rate of 15.0% per annum until such time as no shares of Convertible Preferred Stock shall remain outstanding. After the date on which such Payment Default, in the case of clause (x) above, and/or Protective Default, in the case of clause (y) above, as the case may be, ceases to exist, the dividend rate will revert to the rate originally borne by the Convertible Preferred Stock on the First Issue Date. The increase in the dividend rate provided for above (i) shall be the exclusive remedy of the Holders in the case of a Payment Default and (ii) shall not be the exclusive remedy at law or in equity of the Holders of the Convertible Preferred Stock for any Protective Default or Outside Date Default and shall in no way be deemed a waiver of such Protective Default or Outside Date Default or be deemed to validate any action underlying any such Protective Default or Outside Date Default. In the event that the Corporation shall not have funds legally available for, or is otherwise prohibited by either (A) the DGCL or any other applicable law, or (B) the terms of any Covered Indebtedness to pay any amounts under this paragraph, the obligation to pay such amounts shall be carried forward and fulfilled when such funds are legally available and the Corporation is permitted to do so under the DGCL and any other applicable law and the terms of any Covered Indebtedness. All unpaid dividends will compound on a quarterly basis on each Dividend Payment Date at a rate per annum equal to the then applicable dividend rate. Each dividend shall be payable to the Holders of record as they appear on the stock books of the Corporation on the Dividend Record Date immediately preceding the related Dividend Payment Date; provided that any dividend or distribution payable pursuant to clause (B) above of the first paragraph of this paragraph (c)(i) shall be paid to the Holders of shares of record as they appear on the stock books and the Corporation on the record date applicable to holders of Common Stock and shall be paid to the Holders of Convertible Preferred Stock at the same time such dividend or distribution is made to holders of Common Stock, provided that such cash payment to all holders of Common Stock is not then prohibited under the DGCL, any other applicable law, or the terms of any Covered Indebtedness. (ii) All dividends paid with respect to shares of the Convertible Preferred Stock pursuant to paragraph (c)(i) shall be paid pro rate to the Holders entitled thereto. (A) No full dividends shall be declared by the Board of Directors or paid or set apart for payment by the Corporation on any Parity Securities for any period unless (1)full cumulative dividends have been or contemporaneously are declared and paid in full, or declared and a duly authorized committee thereofsum in cash set apart sufficient for such payment, out on the Convertible Preferred Stock for all Dividend Periods terminating on or prior to the date of payment of such full dividends on such Parity Securities and (2) such payment is in compliance with paragraph (m)(i) hereof. If any dividends are not so paid, all dividends declared upon shares of the assets of the Company legally available therefor, Convertible Preferred Stock and any other Parity Securities shall be payable semiannually commencing on declared Pro rata so that 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 amount of 6% dividends declared per share on the Liquidation Preference; provided thatConvertible Preferred Stock and such Parity Securities shall in all cases bear to each other the same ratio that accrued dividends per share on the Convertible Preferred Stock and such Parity Securities bear to each other. (B) So long as any share of the Convertible Preferred Stock is outstanding, in the event that Corporation shall not declare, pay or set apart for payment any dividend on any Dividend Payment Dateof the Junior Securities, or make any payment on account of, or set apart for payment money for a sinking or other similar fund for, the Company is not permitted to declare purchase, redemption 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 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, and shall not permit any corporation or other entity directly or indirectly controlled by the Corporation to purchase or redeem any of the Junior Securities or any such warrants, rights, calls or options (other than in exchange for Junior Securities) unless (1) full cumulative dividends determined in accordance herewith on the Convertible Preferred Stock have been paid in full for all full quarterly dividend which would ordinarily be periods ended prior to the date of such payment and (2)such payment is in compliance with paragraph (m)(i) hereof. (C) So long as any share of the Convertible Preferred Stock is outstanding, the Corporation shall not (except with respect to dividends as permitted by paragraph (c)(iii)(A)) make any payment on account of, or set apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any of the Parity Securities or any warrants, rights, calls or options exercisable for or convertible into any of the Parity Securities whether in 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 purchase or redeem any of the Parity Securities or any such warrants, rights, calls or options unless (1) full cumulative dividends determined in accordance herewith on the Convertible Preferred Stock have been or contemporaneously are paid in full for all full quarterly dividend periods ending prior to the date of such payment and (2) such payment is in compliance with paragraph (m)(i) hereof. (iv) Dividends payable on such succeeding Dividend Payment Date). The amount of dividends payable the Convertible 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 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 actual number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(adays elapsed (not to exceed 30 days), 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 The holders of shares of the Series A B 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 Datecollectively, 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”"Holders") shall not be declared by entitled to receive dividends unless, within six (6) months following the Board date of Directorsissuance of the Series B Preferred Stock to the Holders (the "Amendment Date"), 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 has not prohibited from declaring, paying and incurring the liability amended its certificate of incorporation 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 order to authorize 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 sufficient number of shares of Common Stock into which such share all of the issued and outstanding shares of Series A B Preferred Stock is then convertiblemay be converted. For purposes In the event the Company does not make such an amendment by the Amendment Date, the Holders shall be entitled to receive cumulative dividends per share at the rate of this Section 3(aeight percent (8%) per annum of the Per Share Liquidation Preference (as defined below), a which shall accrue daily from the date of issuance of the Series B Preferred Stock, and which shall be compounded quarterly. Such dividends shall be payable by the Company (i) prior to payment of any dividend period with respect to Junior Securities and shall be equal, if not greater, in amount to any such dividend on a Dividend Payment Date is per share basis; and (ii) on parity with any dividend with respect to the period commencing Parity Securities and at an amount equal to the dividend on a per share basis received by the preceding Dividend Payment Date holders of the Parity Securities. (orb) Any and all dividends shall be payable out of any cash legally available therefor, and if there is no preceding Dividend Payment Datenot a sufficient amount of cash available, then out of the Issue Date) and ending remaining assets of the Company legally available therefor (valued at the fair market value thereof on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders date of record on the close of business on the day on which payment, as determined by the Board of Directors or a duly authorized committee thereof declares of the dividend payable (eachCompany); provided, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) however, that to the contraryextent funds or assets are not legally available for the payment of any dividend, and without limiting any other remedy available to then the Company shall pay such unpaid dividends promptly as funds 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 Legendassets become legally available therefor.

Dividends. (a) Holders The holders of the then outstanding shares of Series A C Preferred Stock shall will 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, receive out of the assets funds of the Company legally available therefortherefore, cumulative dividends accruing on a daily basis from the Original Issuance Date (as hereinafter defined) through and shall be including the date on which such dividends are paid at the annual rate of 10% (the "Applicable Rate") of the Liquidation Preference (as hereinafter defined) per share of the Series C Preferred Stock, payable semiannually on each March 31, June 30, September 30 and December 31, commencing on the 180th day following the Issue Date June 30, 2003 (or the following Business Day each such date, a "Dividend Payment Date") and calculated in accordance with Section 3(d); provided that: (i) if any such payment date Dividend Payment Date is not a Business Day) (each Day then 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 on the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph next Business Day, and (ii) the product of (A) the aggregate accumulated and unpaid dividends payable per share of Common Stock in such dividend for any prior quarterly period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertiblemay be paid at any time. 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 Such dividends shall be payable to Holders cumulative whether or not earned or declared and whether or not there are profits, surplus or other funds of record on the close Company legally available for the payment of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (eachdividends. The term "Original Issuance Date" means March [27], a “Dividend Record Date”)2003. Notwithstanding anything The dividends provided for in this Section 3(a) are hereinafter referred to as "Dividends." Dividends shall be payable, at the option of the Company, either (i) in cash, (ii) by issuance of additional shares of Series C Preferred Stock (including fractional shares) having an aggregate Liquidation Preference equal to the contraryamount of the dividend to be paid, or (iii) any combination thereof. All dividends paid with respect to shares of Series C Preferred Stock, whether in cash or shares of Series C Preferred Stock, pursuant to this Section 3 shall be made pro rata among the holders thereof based upon the aggregate accrued but unpaid dividends on the shares held by each such holder. If and without limiting when any other remedy available to shares are issued under this Section 3(a) for the Company payment of accrued dividends, such shares shall be validly issued and outstanding and fully paid and nonassessable. For all purposes hereunder, dividends on the Series C Preferred Stock shall be treated as if the same were paid on the relevant Dividend Payment Date, whether or any other partynot the same were in fact so paid or declared. In the case of shares of Series C Preferred Stock issued as a dividend on shares of Series C Preferred Stock, dividends shall not accrue or and be payable cumulative from the Dividend Payment Date in respect of which such shares initially issued any Holder who is contractually obligated were scheduled to appear and vote in favor of any proposal made at be paid pursuant to this Section 3(a) as 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) Holders of shares of 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 thereof, out of the assets funds of the Company legally available thereforfor payment, cumulative dividends in cash at the Dividend Rate. To the extent that the Company is legally permitted to pay dividends, the Company’s Board of Directors shall declare and the Company shall pay dividends in cash on each Dividend Payment Date. Dividends on the Preferred Stock shall be payable quarterly in arrears at the Dividend Rate, and shall accumulate, whether or not earned or declared, from the most recent date to which dividends have been paid, or, if no dividends have been paid, from the Issue Date (whether or not in any Dividend Period or Periods any agreements of the Company prohibit the current payment of dividends, there shall be funds of the Company legally available for the payment of such dividends or the Company declares the payment of dividends), and shall be paid in cash. Dividends shall be payable semiannually in arrears on each Dividend Payment Date (commencing on August 15, 2015) to the 180th day following holders of record of Preferred Stock as they appear on 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”) Company’s stock register at the rate per annum close of 6% per share business on the Liquidation Preference; provided that, in the event that relevant Dividend Record Date. Accumulations of dividends on shares of Preferred Stock for any past 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 Periods may be declared by the Board and paid at any time to holders of Directors, shall record of Preferred Stock not be paid or payable on such more than 30 nor less than 10 calendar days immediately preceding any Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, not bear interest. The Company shall provide not less than 20 Scheduled Trading Days’ notice prior to any 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 Dividends payable for any other period that is shorter or longer less than a full semiannual dividend period will quarterly Dividend Period (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 on and following . (b) No dividend shall be declared or paid upon, or any sum set apart for the Meeting End Datepayment of dividends upon, in any outstanding share of the event that dividends are paid on shares of Common Preferred Stock in any dividend period 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 has been set apart for the Series A payment of such dividend, upon all outstanding shares of Preferred Stock, then . (c) No dividends or other distributions (other than a dividend or distribution payable solely in shares of Junior Stock and cash 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 the Company or on behalf of the Company (except by: (i) conversion into or exchange for shares of Junior Stock and cash solely in lieu of fractional shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock) and (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)), unless all Accumulated Dividends shall have been or contemporaneously are declared and paid, or are declared and a sum sufficient for the payment thereof is set apart for such payment, on the Preferred Stock and any Parity Stock for all dividend payment periods ending 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 Preferred Stock and any Parity Stock, dividends may be payable declared and paid on 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 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 Parity Stock bear to each other at the time of declaration. (d) Holders of shares of Preferred Stock shall not be entitled to any dividend in excess of full cumulative dividends. (e) If any Dividend Payment Date falls on a day that is not a Business Day, the required payment will be 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 each share of Series A Preferred Stock for such period in an amount equal to the greater of delay. (if) 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 The Holders 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 on which the Board of Directors or a duly authorized committee thereof declares Dividend Record Date shall be entitled to receive the dividend payable (each, a “payment on those shares on the corresponding Dividend Payment Date notwithstanding the conversion of such shares in accordance with Section 9 following such Dividend Record Date or the Company’s default in payment of the dividend due on such Dividend Payment Date”). Notwithstanding anything Except as provided in this Section 3(a) to the contrarySections 9, 10 and without limiting any other remedy available to 11, the Company shall make no payment or any other partyallowance for unpaid dividends, whether or not in arrears, on converted shares of Preferred Stock or for dividends shall not accrue or be payable in respect on the shares of shares initially Common Stock 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 Legendupon conversion.

Dividends. (a) Holders of shares of Series A Preferred Stock shall The HARRP Board, in its sole discretion, may declare a dividend to be entitled paid to cumulative dividends on the Series A Preferred Stock payable semiannuallyMembers as a class with respect to any calendar year. The dividend, which dividends if any, with respect to a calendar year shall be declared by when the HARRP Board of Directors believes that all or a duly authorized committee thereof, out substantially all of the assets of claims and losses relating to the Company legally available therefor, calendar year have been resolved and shall be payable semiannually commencing on additional claims and losses relating to the 180th day following the Issue Date (calendar year are barred 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)substantially unlikely. 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 determined by the HARRP Board, in respect its sole discretion. The dividend shall be allocated among the Members of record in the ratio that the Net Financial Contribution of each share of Series A Preferred Stock for such period in an amount equal Member entitled to the greater dividend for the calendar year for which the dividend is declared bears to the total Net Financial Contribution of (i) all Members entitled to the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with dividend for the foregoing paragraph and (ii) calendar year for which 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 convertibledeclared. For purposes of this Section 3(a)Agreement, a dividend period the “Net Financial Contribution” of each Member, with respect to a Dividend Payment Date the calendar year for which the dividend is declared, shall be equal to the period commencing on the preceding Dividend Payment Date (orpositive amount, if there is no preceding Dividend Payment Dateany, by which the Member’s written Contribution for the calendar year exceeds the Member’s Paid Losses for the calendar year. Notwithstanding the foregoing, in the event the foregoing allocation of dividends shall not be in accordance with HARRP’s exemption from Federal income taxation, the Issue DateHARRP Board may allocate the dividend among the Members in a fair and equitable manner, determined in the discretion of the HARRP Board, which shall be in accordance with HARRP’s exemption from Federal income taxation. The HARRP Board shall fix a record date for the dividend in accordance with the Bylaws. Any reasonable determination by the HARRP Board in accordance with this Section 9.1 with respect to the allocation of any dividend among the Members shall be conclusive and binding upon the Members. At the option of each Member, the dividend may be received in cash or credited against future Contributions payable by the Member. Members who have terminated under Section 4.5 or have been expelled under Section 4.6 shall not be entitled to receive a dividend relating to a calendar year (or portion thereof) and ending on during which the day immediately terminated or expelled Member was a Member of HARRP if the effective date of termination or expulsion is prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on date for 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 Legenddividend.

Dividends. (a) Holders The holders of the then outstanding shares of Series A B Preferred Stock shall will 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, receive out of the assets funds of the Company legally available therefortherefore, cumulative dividends accruing on a daily basis from the Original Issuance Date (as hereinafter defined) through and shall be including the date on which such dividends are paid at the annual rate of 10% (the "Applicable Rate") of the Liquidation Preference (as hereinafter defined) per share of the Series B Preferred Stock, payable semiannually on each March 31, June 30, September 30 and December 31, commencing on the 180th day following the Issue Date September 30, 2002 (or the following Business Day each such date, a "Dividend Payment Date") and calculated in accordance with Section 3(d); provided that: (i) if any such payment date Dividend Payment Date is not a Business Day) (each Day then 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 on the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph next Business Day, and (ii) the product of (A) the aggregate accumulated and unpaid dividends payable per share of Common Stock in such dividend for any prior quarterly period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertiblemay be paid at any time. 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 Such dividends shall be payable to Holders cumulative whether or not earned or declared and whether or not there are profits, surplus or other funds of record on the close Company legally available for the payment of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (eachdividends. The term "Original Issuance Date" means June 27, a “Dividend Record Date”)2002. Notwithstanding anything The dividends provided for in this Section 3(a) are hereinafter referred to as "Dividends." Dividends shall be payable, at the option of the Company, either (i) in cash, (ii) by issuance of additional shares of Series B Preferred Stock (including fractional shares) having an aggregate Liquidation Preference equal to the contraryamount of the dividend to be paid, or (iii) any combination thereof. All dividends paid with respect to shares of Series B Preferred Stock, whether in cash or shares of Series B Preferred Stock, pursuant to this Section 3 shall be made pro rata among the holders thereof based upon the aggregate accrued but unpaid dividends on the shares held by each such holder. If and without limiting when any other remedy available to shares are issued under this Section 3(a) for the Company payment of accrued dividends, such shares shall be validly issued and outstanding and fully paid and nonassessable. For all purposes hereunder, dividends on the Series B Preferred Stock shall be treated as if the same were paid on the relevant Dividend Payment Date, whether or any other partynot the same were in fact so paid or declared. In the case of shares of Series B Preferred Stock issued as a dividend on shares of Series B Preferred Stock, dividends shall not accrue or and be payable cumulative from the Dividend Payment Date in respect of which such shares initially issued any Holder who is contractually obligated were scheduled to appear and vote in favor of any proposal made at be paid pursuant to this Section 3(a) as 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) 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 thereofreceive, out of the assets of the Company, Dividends on the terms described below: (i) For each period from and including the Original Issue Date, but excluding, [ ], 2028 (the “First Reset Date”), the Company legally available thereforshall pay, subject to Section 4(c), if, as and when declared by the Board of Directors, out of funds of the Company, on each Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Series B Preferred Stock (the “Dividends”) at a rate per annum equal to 7.50% of the Liquidation Preference per share of Series B Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4(a)(ii) below. For each Payment Period beginning on the First Reset Date, the Dividend Rate shall be equal to the prior Payment Period’s Dividend Rate, plus 1.50%. Subject to Section 4(c), to the extent not paid in cash, whether or not the Company has earnings, whether or not the payment of such dividends is then permitted under Delaware law, whether or not such dividends are authorized or declared, and whether or not any agreements to which the Company is a party prohibit the current payment of dividends, including any agreement relating to the Company’s indebtedness, Dividends on each share of Series B Preferred Stock shall accrue daily from and after the Original Issue Date of such share and shall compound on a quarterly basis on each Dividend Payment Date (i.e., no dividends shall accrue on other dividends unless and until the first Dividend Payment Date for such other dividends has passed). The Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 6 or upon any conversion of the Series B Preferred Stock pursuant to Section 7. Dividend payments shall be aggregated per Holder and shall be payable semiannually commencing on made to the 180th day following the Issue Date nearest cent (or the following Business Day if any with $0.005 being rounded upward). (ii) Each Dividend if, as and when 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 Dividends are declared by the Board of Directors, shall not be paid or payable to the Holders in cash or, at the option of the Holder, in shares of Common Stock. Any shares of Common Stock issued in payment of a Dividend on such Dividend Payment Date and no liability Preferred Stock shall be incurred valued at the closing price of the last Trading Day preceding the record date designated by the Board of Directors relating to such Dividends. Notwithstanding anything in respect thereofthis Certificate of Designation to the contrary, 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 until the Company is has obtained the Authorized Share Increase Approval and filed the corresponding certificate of amendment to the Company’s Certificate of Incorporation, the Company may 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 issue shares of Common Stock in any dividend period with respect payment of a Dividend. Following receipt of the Authorized Share Increase Approval and filing of the corresponding certificate of amendment to the Series A Preferred StockCompany’s Certificate of Incorporation, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to but until the greater of (i) Company has obtained the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with Exchange Cap Approval, the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share Company may not issue shares of Common Stock in payment of a Dividend to the extent such dividend period times (B) the number payment would result in an issuance of shares of Common Stock into which such share in excess of Series A Preferred Stock is then convertiblethe Exchange Cap. (iii) Each Dividend shall be paid pro rata to the Holders. For purposes of this Section 3(a), a dividend period with respect Each Dividend shall be payable to a Dividend Payment Date is the period commencing Holders as they appear on the Register at the Close of Business on the date which is 15 days preceding the applicable Dividend Payment Date (orsuch date, if there is no preceding an “Dividend Payment Record Date”). (a) If the Holders elect to receive a cash dividend payment and the Company fails to make the corresponding cash dividend payment (a “Dividend Nonpayment”) with respect to three or more consecutive or non-consecutive Payment Periods, the Issue DateDividend Rate on the Preferred Stock will increase an additional 0.25% per annum commencing immediately following the third Payment Period for which there has been a Dividend Nonpayment and will increase an additional 0.25% per annum every third succeeding Dividend Nonpayment (whether the Payment Periods to which such Dividend Nonpayments relate are consecutive or non-consecutive); provided, however, the maximum Dividend Rate on the Preferred Stock (after giving effect to Section 4(a)(i) and ending this Section 4(b)) shall be capped at 12.0% per annum. (c) If the date relating to a Liquidation pursuant to Section 6, upon any conversion of the Series B Preferred Stock pursuant to Section 7, or upon any redemption of the Series B Preferred Stock pursuant to Section 8, respectively, is after a Dividend Payment Record Date for a declared Dividend on the day immediately Series B Preferred Stock but occurs on or prior to the next Dividend Payment Date. Dividends payable , then the Holder of such share of Series B Preferred Stock at the Close of Business on a such Dividend Payment Record Date shall will be payable entitled, notwithstanding the related Liquidation, conversion or redemption, as applicable, to Holders receive, on or, at the Company’s election, before such Dividend Payment Date, such declared Dividend on such share 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”)Series B Preferred Stock. Notwithstanding anything Except as provided in this Section 3(a) 4(c), Dividends on any share of Preferred Stock will cease to accumulate from and after the contrarydate relating to a Liquidation pursuant to Section 6, and without limiting upon 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 conversion of the Company in order Series B Preferred Stock pursuant to effect Section 7, or upon any redemption of the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so Series B Preferred Stock pursuant to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendSection 8, as applicable.

Dividends. (a) Holders of shares The holders of Series A B 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 B 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 declaringpaid in cash; provided further, paying however, that the dividend payment payable on the initial Dividend Payment Date shall include 56.9% of the accrued and incurring unpaid dividends on Series A Preferred Shares being exchanged pursuant to the liability Exchange Agreement through and including the Issue Date. Each such dividend payable in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend cash shall be payable in addition toarrears to the holders of record of the Series B 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 B 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 B 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 B 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 B Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of accrued and unpaid dividends, as herein provided, on the event that Series B Preferred Shares. (c) All dividends are paid on shares of Common Stock in any dividend period with respect to Series B Preferred Shares shall be paid pro rata. (d) So long as any Series B 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 B Preferred StockShares for the immediately preceding Dividend Period and on the Parity Shares for the immediately preceding 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 B 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 B Preferred Shares and such class or classes or series of Parity Shares. (ie) So long as any Series B 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 B 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 So long as any shares of Series A Senior Preferred Stock shall be outstanding, the holders of such Senior Preferred Stock shall be entitled to cumulative receive out of any funds legally available therefor, when, as and if declared by the Board, preferential dividends in cash at 23 24 the Dividend Rate on the Series A Preferred Stock Liquidation Preference hereunder, payable semiannuallyquarterly on the first Business Day of each calendar quarter commencing on October 1, which 2001. Such dividends shall be cumulative and begin to accrue on a daily basis 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 thereforfor the payment of those dividends. (b) So long as any shares of Senior Preferred Stock shall be outstanding: (i) no dividend whatsoever shall be paid or declared, and no distribution shall be payable semiannually commencing made, on account of any class or series of Junior Stock or Parity Stock (other than, with respect to Junior Stock, dividends paid or distributions made solely in additional shares of such Junior Stock, and, with respect to Parity Stock, a partial dividend paid pro rata on such Parity Stock and the 180th day following Senior Preferred Stock) unless (A) all dividends in respect of the Issue Date Senior Preferred Stock for all past and current dividend periods have been paid in full and (B) such dividend or distribution consists only of cash and/or cash equivalents; and (ii) no shares of Junior Stock or Parity Stock, or any option, warrant or other right to acquire the following Business Day if Company's capital stock, shall be purchased, redeemed, retired or acquired by the Company or any such payment date is not subsidiary of the Company and no funds shall be paid into or set aside or made available for a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at sinking fund for the rate per annum of 6% per share on the Liquidation Preferencepurchase, redemption, retirement or acquisition thereof; provided that, in notwithstanding the event that on any Dividend Payment Dateforegoing, the Company is not permitted may, from time to declare time, repurchase any options or pay such dividend or incur such liability either (x) as a matter of law or (y) under any other rights to acquire the terms of any loan agreement, credit agreement, guarantyCompany's capital 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 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 options or other rights to acquire the Company's capital stock may have been exercised, in each case in accordance with the Stock is then convertible. Option Plan 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 Key Employees 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 Option Plan For Unit Directors, as applicable.

Dividends. (a) From and including the Issue Date, Holders of shares of Series A Preferred Stock shall be entitled to receive, prior to any distributions made in respect of any Junior Stock and prior to or contemporaneously with any distributions made in respect of any Parity Stock, in each case in respect of the same fiscal quarter, cumulative cash dividends on the each outstanding Series A Preferred Stock payable semiannually, which dividends shall be declared by Share at the Board of Directors or a duly authorized committee thereofDividend Rate, out of the assets of the Company funds legally available thereforfor payment thereof (such dividends, and shall be payable semiannually commencing “Cash Dividends”) on the 180th day following Liquidation Preference in effect immediately after the Issue immediately preceding 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 Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any there has been no prior 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 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 months and compounded quarterly beginning on and following the Meeting End Issue Date (each such amount, a “Dividend Amount”). (b) Cash Dividends shall be payable in arrears on each Dividend Payment Date, in to the event that dividends are paid Holders as they appear on shares the Company’s stock register at the close of Common Stock in any dividend period with respect to business on the relevant Dividend Record Date. Dividends on the Series A Preferred StockStock shall accumulate and become Accrued Dividends on a day-to-day basis from, then a dividend shall be payable but not including, the immediately preceding Dividend Payment Date, or if there has been no prior Dividend Payment Date, from, and including, the Issue Date, until Cash Dividends are paid pursuant to this Section 3(a) in respect of each share such accumulated amounts or the Liquidation Preference is increased in respect of such accumulated amounts pursuant to Section 3(c) or Section 3(d). If a Dividend Payment Date is not a Business Day, then any Cash Dividend in respect of such Dividend Payment Date shall be due and payable on the first Business Day following such Dividend Payment Date. (c) If the Company fails to pay or declare a Cash Dividend in respect of any Dividend Payment Date, then the amount of the Accrued Dividends with respect to such shares of Series A Preferred Stock for shall be deemed to be Accumulated Dividends and be added, effective as of such period in an amount equal Dividend Payment Date, to the greater of Liquidation Preference until such time, if any, as such Cash Dividend is actually paid in cash. (id) Notwithstanding anything to the amount otherwise payable in respect of such share contrary herein, if any shares of Series A Preferred Stock are converted into Common Stock in accordance with this Certificate of Designation, or are repurchased or redeemed by the foregoing paragraph and (ii) Company in accordance with Section 7 or Section 8, then the product amount of (A) the aggregate dividends payable per share of Common Stock in Accrued Dividends with respect to 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 through, and including, the related Conversion Date, Change of Control Repurchase Date, Company Redemption Date or Investor Redemption Date, as applicable, shall be deemed to be Accumulated Dividends and be added to the Liquidation Preference for purposes of this Section 3(a)such conversion, repurchase or redemption, as applicable. Notwithstanding anything to the contrary in the preceding sentence, if such Conversion Date, Change of Control Repurchase Date, Company Redemption Date or Investor Redemption Date, as applicable, occurs during the period after a dividend period with respect Dividend Record Date for a Cash Dividend that has been declared and on or prior to a the corresponding Dividend Payment Date, then such Cash Dividend will, at the Company’s option, either (x) be paid in cash on or prior to such Dividend Payment Date is (and the period commencing on amount of such Cash Dividend will not be added to the Liquidation Preference pursuant to the preceding sentence) 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, repurchase or redemption, as applicable. For the avoidance of doubt, such Accrued Dividends described in the second immediately preceding sentence shall include, without limitation, dividends accruing from, and including, the immediately preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, from, and including, the Issue Issuer Date) and ending on to, but not including, the day immediately prior to applicable Conversion Date, Change of Control Repurchase Date, Company Redemption Date or Investor Redemption Date, as applicable. (e) So long as any share of the next Dividend Payment Date. Dividends payable on a Dividend Payment Date Series A Preferred Stock remains outstanding, no dividend or distribution shall be payable to Holders of record on the close of business on the day on which the Board of Directors declared or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrarypaid on, and without limiting any other remedy available no redemption or repurchase shall be agreed to the Company or consummated of, Parity Stock, Common Stock or any other partyshares of Junior Stock, unless all accumulated and unpaid dividends for all preceding Dividend Periods (including the Dividend Period in which such accumulated and unpaid dividends first arose) of the Company have been declared and paid and no such dividend or distribution or redemption or repurchase shall not accrue be paid or be payable in cash for any period unless the Series A Preferred Stock has been paid full Cash Dividends in respect of the same period (i.e., that are not Accumulated Dividends); provided, however, that the foregoing limitation shall not apply to (i) a dividend payable on Common Stock or other Junior Stock in shares initially issued 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 Holder who is contractually obligated to appear and vote 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 favor connection with the administration of any proposal made at 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 meeting stockholders’ rights plan or any redemption or repurchase of stockholders rights pursuant to any stockholders’ rights plan; and (vi) the exchange or conversion of Junior Stock for or into other Junior Stock and the Company payment of cash in order lieu of fractional shares of other Junior Stock. Notwithstanding the preceding, 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 amounts of dividends declared per share on the Series A Preferred Stock and such Parity Stock shall in all cases bear to effect each other the Stockholder Approval 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. (f) For the avoidance of doubt, Holders of Series A Preferred Stock shall not be entitled to any dividend paid on any Common Stock or whose transferor Holder was so obligated) if such Holder (other Junior Stock, any dividend paid on any Parity Stock 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 Legendany dividend paid on any Senior Stock.

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, and 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 in favor of any proposal made at a meeting of stockholders one of the Company ratings set forth in order to effect the Stockholder Approval table below (or whose transferor Holder was so obligatedits 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) if set opposite such Holder rating (or such transferor Holder or the Affiliates of eitherequivalent rating from any Other Rating Agency) fails so to appear and vote in favorthe Applicable Rate. Any shares issued to such Holders shall bear the Stockholder Approval Legend.FITCH ENHANCED DIVIDEND AMOUNT “A-” 0.5%

Dividends. (a) Holders of shares of issued and outstanding 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 and as declared 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, cumulative preferential cash dividends at a rate per annum equal to the Dividend Rate of the twenty-five thousand dollar ($25,000.00) per share stated liquidation preference of the Series E Preferred Shares. Except as otherwise provided in paragraphs (b) and (c) of this Section 3, the Dividend Rate shall be equal to the Stated Rate. Such dividends shall accrue and accumulate on each issued and outstanding share of the Series E Preferred Shares on a daily basis from (but excluding) the original date of issuance of such share and shall be payable semiannually commencing monthly in equal amounts in arrears on the 180th last calendar day following of each Dividend Period except for Series E Preferred Shares issued during [ ] 2012, for which an initial partial dividend payment for dividends accrued in [ ] 2012 shall be payable at the Issue Date (or end of the following Business Day if any such payment date is not a Business Day) first full Dividend Period (each such date day being referred to herein as hereinafter called a “Dividend Payment Date”); provided that (i) at Series E Preferred Shares issued during any Dividend Period after the rate per annum of 6% per share Dividend Record Date for such Dividend Period shall only begin to accrue dividends on the Liquidation Preferencefirst day of the next Dividend Period; provided that, in the event that on and (ii) 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 on which the Company is not prohibited from declaring, paying and incurring the liability in respect of to such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any next succeeding Business Day. 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 the Series E Preferred Shares shall be computed on the basis of a 360-day three hundred and sixty (360)-day year consisting of twelve 30-day (12) thirty (30)-day months. Commencing Any dividend payable 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 E Preferred Stock, then a dividend Shares for any partial Dividend Period 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 Dateprorated. 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 (i) with respect to the partial Dividend Period for dividends accrued during [ ] 2012 described above, [ ], 2012, and (ii) with respect to all other Dividend Periods, the tenth (10th) 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 thirty (each30) nor less than ten (10) days prior to such Dividend Payment Date (each such date, a “Dividend Record Date”). Notwithstanding anything . (b) If at any time four (4) Quarterly Dividend Defaults occur, whether consecutive or non-consecutive (a “Dividend Default”), then: (i) the Dividend Rate shall increase to the Penalty Rate, commencing on the first day after the Dividend Payment Date on which a Dividend Default occurs and for each subsequent Dividend Payment Date thereafter until such time as the Corporation has paid all accumulated accrued and unpaid dividends on the Series E Preferred Shares in full and has paid accrued dividends for all Dividend Periods during the two (2) most recently completed Quarterly Dividend Periods in full in cash, at which time the Dividend Rate shall revert to the Stated Rate; (ii) on the next Dividend Payment Date following the Dividend Payment Date on which a Dividend Default occurs, and continuing until such time as the Corporation has paid all accumulated accrued and unpaid dividends on the Series E Preferred Shares in full and has paid accrued dividends for all Dividend Periods during the two (2) most recently completed Quarterly Dividend Periods in full in cash, the Corporation shall pay all dividends on the Series E Preferred Shares, including all accumulated accrued and unpaid dividends, on each Dividend Payment Date either in cash or, if not paid in cash, by issuing to the holders thereof (A) if the Common Shares are then subject to a National Market Listing, registered Common Shares with a value equal to the amount of dividends being paid, calculated based on the then-current Market Value of the Common Shares, plus cash in lieu of any fractional Common Share; or (B) if the Common Shares are not then subject to a National Market Listing, additional Series E Preferred Shares with a value equal to the amount of dividends being paid, calculated based on the twenty-five thousand dollar ($25,000.00) per share stated liquidation preference of the Series E Preferred Shares (and dividends on any such Series E Preferred Shares upon issuance shall accrue at the Penalty Rate and accumulate until such time as the Dividend Rate shall revert to the Stated Rate in accordance with subparagraph (i) of this paragraph (b)); (iii) until such time as the Dividend Rate reverts to the Stated Rate pursuant to subparagraph (i) of this paragraph (b), the holders of Series E Preferred Shares will have the voting rights described below in paragraph (a) of Section 3(a8; and (iv) to the contraryextent that the Corporation determines a shelf registration statement to cover resales of Common Shares or Series E Preferred Shares is required in connection with the issuance of, or for resales of, such Common Shares or Series E Preferred Shares issued as payment of a dividend, the Corporation will use its commercially reasonable efforts to file and maintain the effectiveness of such a shelf registration statement until such time as all shares of such stock have been resold thereunder or such shares are eligible for resale pursuant to Rule 144(b)(1) under the Securities Act of 1933, as amended. Following any Dividend Default that has been cured by the Corporation as provided above in subparagraph (i) of this paragraph (b), if the Corporation subsequently fails to pay cash dividends on the Series E Preferred Shares in full for any Dividend Period, such subsequent failure shall constitute a separate Dividend Default, and without limiting any other remedy available the foregoing provisions of subparagraphs (i), (ii), (iii), and (iv) of this paragraph (b) shall immediately apply until such subsequent Dividend Default is cured as so provided. (c) Once the Series E Preferred Shares become initially eligible for National Market Listing, if the Corporation fails to maintain a National Market Listing for the Series E Preferred Shares for one hundred and eighty (180) consecutive days or longer (a “Listing Default”), then: (i) the Dividend Rate shall increase to the Company Penalty Rate, commencing on the day after the Listing Default and continuing until such time as the Corporation has cured the Listing Default by again subjecting the Series E Preferred Shares to a National Market Listing, at which time the Dividend Rate shall revert to the Stated Rate; and (ii) until such time as the Dividend Rate reverts to the Stated Rate pursuant to subparagraph (i) of this paragraph (c), the holders of Series E Preferred Shares will have the voting rights described below in paragraph (a) of Section 8. Following any Listing Default that has been cured by the Corporation as provided above in subparagraph (i) of this paragraph (c), if the Series E Preferred Shares subsequently cease to be subject to a National Market Listing, such event shall constitute a separate Listing Default, and the foregoing provisions of subparagraphs (i) and (ii) of this paragraph (c) shall immediately apply until such time as the Series E Preferred Shares are again subject to a National Market Listing. (d) The Corporation shall at all times keep reserved a sufficient number of Common Shares or Series E Preferred Shares for the payment of dividends on the Series E Preferred Shares as described above in paragraph (b) of this Section 3, and if a dividend is paid in shares of stock an amount equal to the aggregate par value of the shares issued shall be designated as capital in respect of such shares in accordance with Section 154 of the DGCL. (e) No dividend on the Series E 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, 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 DGCL or other partyapplicable law; provided, however, notwithstanding anything to the contrary contained herein, dividends on the Series E Preferred Shares shall continue to accrue and accumulate 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 E Preferred Shares will accumulate as of the Dividend Payment Date on which they first become payable or on the date of redemption of the Series E Preferred Shares, as the case may be. (f) Except as provided in the next sentence, if any Series E Preferred Shares are outstanding, no dividends will be declared or paid or set apart for payment on any Parity Shares or Junior Shares, unless all accumulated accrued and unpaid dividends are contemporaneously declared and paid in cash or declared and a sum of cash sufficient for the payment thereof set apart for such payment on the Series E Preferred Shares for all past Dividend Periods with respect to which full dividends were not paid on the Series E Preferred Shares either in cash or, as applicable, in Common Shares or Series E Preferred Shares. When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart for payment) upon the Series E Preferred Shares and upon all Parity Shares, all dividends declared, paid or set apart for payment upon the Series E Preferred Shares and all such Parity Shares shall be declared and paid pro rata or declared and set apart for payment pro rata so that the amount of dividends declared per share of Series E Preferred Shares and per share of such Parity Shares shall in all cases bear to each other the same ratio that accumulated dividends per share of Series E Preferred Shares and such other Parity Shares (which shall not accrue include any accumulation in respect of unpaid dividends for prior dividend periods if such other Parity Shares do not bear cumulative dividends) 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 dividend payment or payments on Series E Preferred Shares which may be in arrears, whether at the Stated Rate or at the Penalty Rate. (g) Except as provided in paragraph (f) of this Section 3, unless all accumulated accrued and unpaid dividends on the Series E Preferred Shares are contemporaneously declared and paid in cash or declared and a sum of cash sufficient for the payment thereof is contractually obligated set apart for payment for all past Dividend Periods with respect to appear which full dividends were not paid on the Series E Preferred Shares either in cash or, as applicable, in Common Shares or Series E Preferred Shares, no dividends (other than in Common Shares or Junior Shares ranking junior to the Series E Preferred Shares as to dividends and vote in favor upon liquidation) may be declared or paid or set apart for payment upon the Common Shares or 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 proposal made at a meeting such stock) by the Corporation (except by conversion into or exchange for Junior Shares, by redemption, purchase or acquisition of stockholders stock under any employee benefit plan of the Company Corporation or a repurchase or acquisition of stock from a director, manager, officer or employee of the Corporation or any subsidiary or affiliate thereof in order connection with the termination of such person’s service or employment). (h) Holders of Series E Preferred Shares shall not be entitled to effect any dividend, whether payable in cash, property or shares, in excess of all accumulated accrued and unpaid dividends on 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 Series E Preferred Shares as described in favorthis Section 3. Any shares issued dividend payment made on the Series E Preferred Shares shall first be credited against the earliest accumulated accrued and 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 of shares The holders of Series A D-2 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-2 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-2 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-2 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-2 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-2 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-2 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-2 Preferred Shares as herein provided. (c) All dividends paid on shares of Common Stock in any dividend period with respect to Series D-2 Preferred Shares shall be paid pro rata. (d) So long as any Series D-2 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-2 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-2 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-2 Preferred Shares and such class or classes or series of Parity Shares. (ie) So long as any Series D-2 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-2 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 The holders of outstanding shares of Series A Perpetual 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 thereofreceive, out of the assets of the Company any funds legally available therefor, and shall be payable semiannually commencing cumulative (non-compounding) dividends 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”) Perpetual Preferred Stock in cash, at the per share rate per annum of 6% per ten percent (10%) of $1,000.00 (adjusted appropriately for stock splits, stock dividends, recapitalizations and the like with respect to the Perpetual Preferred Stock) (a "Perpetual Cumulative Dividend"). Such dividends will accumulate quarterly in arrears commencing as of the date of issuance of the Perpetual Preferred Stock and be cumulative, to the extent unpaid, 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. The date on which the Corporation initially issues any share of Perpetual Preferred Stock shall be deemed to be its "date of issuance" regardless of the number of times transfer of such share is made on the Liquidation Preferencestock records maintained by or for the Corporation and regardless of the number of certificates which may be issued to evidence such share. Perpetual Cumulative Dividends shall become due and payable with respect to any share of Perpetual Preferred Stock as provided in Section 3 and 4. So long as any shares of Perpetual Preferred Stock are outstanding and the Perpetual Cumulative Dividends have not been paid in full in cash: (a) no dividend whatsoever shall be paid or declared, and no distribution shall be made, on any Common Stock or other capital stock of the Corporation ranking junior to the Perpetual Preferred Stock; and (b) no shares of capital stock of the Corporation ranking junior to the Perpetual Preferred Stock shall be purchased, redeemed or acquired by the Corporation and no monies shall be paid into or set aside or made available for a sinking fund for the purchase, redemption or acquisition thereof; provided that, in unless the event that on any Dividend Payment Dateholders of not less than sixty-six and two-thirds percent (66 2/3%) of the voting power of the outstanding Perpetual Preferred Stock elect otherwise, 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 Corporation may repurchase shares of Common Stock in any dividend period with respect from present or former employees of the Corporation and its subsidiaries on terms approved by the Corporation's board of directors. All numbers relating to the Series A calculation of dividends pursuant to this Section 2 shall be subject to equitable adjustment in the event of any stock split, combination, reorganization, recapitalization, reclassification or other similar event involving a change in the Perpetual 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 From the date of shares issuance hereof, until ___________, 1999 [the second anniversary of the Closing Date under the Purchase Agreement](the "Dividend Payment Date"), the holders of Series A Preferred Stock shall be entitled to cumulative receive, when and as declared, out of the net profits of the Corporation, dividends at the rate of $0.83 per annum, payable in additional shares of Series A Preferred Stock, before any dividends shall be set apart for or paid upon the Common Stock or any other stock ranking on liquidation junior to the Series A Preferred Stock (such stock being referred to hereinafter collectively as "Junior Stock") in any year. The number of shares of Series A Preferred Stock to be issued in payment of the dividend with respect to each outstanding share of Series A Preferred Stock shall be determined by dividing the amount of the dividend that would have been payable had such dividend been paid in cash by $10.00. To the extent that any such dividend would result in the issuance of a fractional share of Series A Preferred Stock (which shall be determined with respect to the aggregate number of shares of Series A Preferred Stock held of record by each holder) then the amount of such fraction multiplied by $10.00 shall be paid in cash (unless there are no legally available funds with which to make such cash payment, in which event such cash payment shall be made as soon as possible). All dividends declared upon Series A Preferred Stock shall be declared pro rata per share. (b) Dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by through 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 cumulative, whether or not in respect thereof, and instead, such Deferred Dividend either fiscal year there 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, net profits or surplus available 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 in such fiscal year, so that is shorter if in either fiscal year, dividends in whole 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 part are not paid on shares of Common Stock in any dividend period with respect to upon the Series A Preferred Stock, then a dividend unpaid dividends shall accumulate as against the holders of the Junior Stock and no sums in that fiscal year or any subsequent fiscal year shall be paid to the holders of Junior Stock unless and until all dividends accrued and payable in respect of the Series A 116 Preferred Stock have been paid or a sum sufficient for such payment shall have been set apart. (c) At all times after the Dividend Payment Date, if, as and when the Board of Directors of the Corporation declares any cash dividend on the shares of Common Stock, the Board of Directors shall declare a cash dividend on each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise dividend 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 on each share of Common Stock in such dividend period times (B) multiplied by 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 convertible 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 Daterecord date for such dividend. Dividends payable on a Dividend Payment Date Such dividend shall be payable to Holders of record at the same time and otherwise on the close of business same terms as any dividend paid 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. (ai) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends Dividends on the Series A Company 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 Securities will be payable semiannually commencing from the date of initial issuance on the 180th day following the Issue Date a noncumulative basis, semi-annually in arrears on April 1 and October 1 of each year through - 2011 and thereafter quarterly in arrears on January 1, April 1, July 1 and October 1 (or the following Business Day if any such payment date day is not a Business Day, the next Business Day, but without any additional interest or other payment in respect of such delay) (each such date being referred to herein as 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 - 2011, at the a fixed rate per annum of 6% per share on the Liquidation Preference; 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 3.07% 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 thatin such No Dividend Instruction (see Section 7.3(b)(v) below). If any dividends will be payable on the Company Preferred Securities on a day that is not a Business Day, those dividends will instead be paid on the next Business Day. No interest or other payment will be due as a result of any such adjustment. 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 at 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 -28- 34 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 of its rate. If at least two such quotations are provided, LIBOR with respect to that Determination Date 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 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 Bank Junior Obligations 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 Notwithstanding paragraph (B) above, the Company will not be required to pay dividends solely as a result of (a) 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 event 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 Bank Parity Securities or Bank Junior Obligations pursuant to 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 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 Company Preferred Securities are required to be paid as described in paragraph (A), (B) or (C) above is a "Mandatory Dividend Payment Date." The amount of 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 permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under dividends on the terms of Company Preferred Securities on 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 (whether or not it is a Mandatory Dividend Payment Date) if on such date the Bank is not in respect thereofcompliance, and instead, such Deferred Dividend shall be declared, become payable and be paid and or because of a distribution by the liability in respect thereof be incurred Bank or any of its subsidiaries of profits of the Bank (including a payment of dividends on the first succeeding Company Preferred Securities) would not be in compliance, 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 on which in April of each year, the Bank will deliver a certificate 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 "Distributable Profits Limitation Certificate") specifying: (i) the amount otherwise payable in respect Distributable Profits of such share of Series A Preferred Stock in accordance with the foregoing paragraph Bank for the financial year ending on the preceding December 31 and (ii) the product 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 payable per share on the Company Preferred Securities that the Company may pay on the Dividend Payment Date in April of Common Stock the current year may not exceed the lesser of full dividends and the Available Distributable Profits set forth in such dividend period times Distributable Profits Limitation Certificate, and (B) the number aggregate amount of shares of Common Stock into which such share of Series A dividends on the Company Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Securities that the Company may pay on any subsequent Dividend Payment Date is in the period commencing on current year (or in January of the preceding following year in the case of Dividend Payment Date Dates occurring after - 2011) may not exceed the lesser of full dividends and the remaining amount of such Available Distributable Profits (orafter giving effect to the payment of dividends pursuant to this subclause or subclause (A), if there is no preceding above). (v) Except for the Mandatory Dividend Payment Date, the Issue Date) and ending Amounts required to be paid on the day immediately prior to the next Mandatory Dividend Payment Date. Dividends Dates: (A) dividends on Company Preferred Securities will not be payable on a Dividend Payment Date shall be payable to Holders of record if, on or before the close of business on tenth Business Day immediately preceding such Dividend Payment Date, the day on which the Board of Directors or Bank delivers a duly authorized committee thereof declares the dividend payable (each, a “No Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available Instruction to the Company or any other partyinstructing it not to pay dividends on such Dividend Payment Date; and If a No Dividend Instruction is given, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated then the Company must promptly give notice to appear and vote in favor of any proposal made at a meeting of stockholders holders of the Company Preferred Securities in order to effect the Stockholder Approval (or whose transferor Holder was so obligatedmanner described in Section 7.3(i) of the fact that it has received a No Dividend Instruction and the amount of dividends, if such Holder (or such transferor Holder or any, that will be paid on the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendrelated Dividend Payment Date.

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 dividend payment or payments on the Series C Preferred Stock, whether or not in arrears. (b) No dividend on the Series C Preferred Stock shall be declared by the Board or paid or set apart for payment by the Company at such time as the terms and vote in favor provisions of any proposal made at agreement of the Company, including any agreement relating to its indebtedness, prohibits such declaration, payment or setting apart for payment or provides that such declaration, payment or setting apart for payment would constitute a meeting breach thereof, or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law. Notwithstanding the foregoing, dividends on the Series C Preferred Stock shall accumulate whether or not any of stockholders the foregoing restrictions exist (c) Except as provided in subsection V(d) herein, so long as any shares of Series C Preferred Stock are outstanding, (i) no dividends (other than in Common Stock or other Capital Stock of the Company in order ranking junior to effect the Stockholder Approval Series C Preferred Stock as to payment of dividends and amounts upon liquidation, dissolution or winding-up of the Company) shall be declared or paid or set apart for payment upon the Common Stock or any other class or series of Capital Stock of the Company ranking, as to payment of dividends or amounts distributable upon liquidation, dissolution or winding-up of the Company, on a parity with or junior to the Series C Preferred Stock, for any period and (ii) no Common Stock or other Capital Stock of the Company ranking junior to or on a parity with the Series C Preferred Stock as to payment of dividends or amounts upon liquidation, dissolution or winding-up of the Company, shall be redeemed, purchased or otherwise acquired for any consideration (or whose transferor Holder was any monies be paid to or made available for a sinking fund for the redemption of any such Capital Stock) by the Company (except by conversion into or exchange for other Capital Stock of the Company ranking junior to the Series C Preferred Stock as to payment of dividends and amounts upon liquidation, dissolution or winding-up of the Company or by redemptions for the purpose of maintaining the Company's qualification as a real estate investment trust ("REIT") for U.S. federal income tax purposes) unless, in the case of either clause (i) or (ii), 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 C Preferred Stock for all Dividend Periods ending on or prior to the dividend payment date for the Common Stock or such other class or series of Capital Stock or the date of such redemption, purchase or other acquisition. (d) When dividends are not paid in full (or a sum sufficient for such full payment is not set apart for such payment) upon the Series C Preferred Stock and any other Capital Stock ranking on a parity as to payment of dividends with the Series C Preferred Stock, all dividends declared upon the Series C Preferred Stock and any other Capital Stock ranking on a parity as to payment of dividends with the Series C Preferred Stock shall be declared pro rata so obligated) that the amount of dividends declared per share of Series C Preferred Stock and such other Capital Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series C Preferred Stock and such other Capital Stock (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such Holder Capital Stock does not have a cumulative dividend) bear to each other. (or such transferor Holder or e) The holders of the Affiliates shares of eitherSeries C Preferred Stock shall not be entitled to any dividends in excess of full cumulative dividends as described in V(a) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendabove.

Dividends. (a) Holders The Grantee shall be entitled to receive dividends payable with respect to the Restricted Stock actually issued, whether or not vested, to the extent the Company declares and pays dividends on its Common Stock. (b) The dividend date with respect to Restricted Stock granted as part of shares of Series A Preferred the TBRE Award and the CPRE Award shall be the Effective Date and such Restricted Stock shall be entitled to cumulative dividends dividend equivalent amounts equal to the full distribution payable on Common Stock outstanding as of the Series A Preferred record dates for the first and second 2007 quarterly distributions even though they were not outstanding for the whole period. (c) The dividend date with respect to Restricted Stock payable semiannually, which dividends issued as part of the Earned SPRE Award shall be declared by the Board of Directors or a duly authorized committee thereofissuance date, out provided, however, that the Earned SPRE Award shall be entitled to the full dividend payable on Common Stock outstanding as of the assets record dates for the quarterly distribution next following the date on which they are issued based on performance as provided in Section 4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof even though they may not have been outstanding for the whole period. (d) Commencing as of the Company legally available thereforEffective Date through the date the shares of Restricted Stock underlying the SPRE Award are actually issued to the Grantee or forfeited pursuant to Section 4(c)(vi), and shall be payable semiannually commencing on as 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 Datecase may be, the Company is not permitted to declare or pay such shall provide a quarterly 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 equivalent payment 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 cash 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 Grantee in an amount equal to 20% 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 dividend payable per share of Common Stock in such dividend period times (B) multiplied by the number of shares of Common Restricted Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a underlying the SPRE Award. (e) All dividends and dividend period equivalent payments paid with respect to a Dividend Payment Date is Restricted Stock shall be fully vested and non-forfeitable when paid, whether or not the period commencing underlying shares of Restricted Stock have been earned based on performance or have become vested based 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 passage 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 Legendtime.

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. (a) Holders From and after the date of shares issuance of Series A Preferred the Restricted Stock Units until such time as the Restricted Stock Units shall be forfeited or shall vest, each in accordance with the terms of this Agreement, you will be entitled to cumulative rights to dividends on the Series A Preferred shares of TRW Common Stock payable semiannually, which (if and as declared and paid). Such dividends shall be declared by deemed to be reinvested in additional Restricted Stock Units on the Board date of Directors or a duly authorized committee thereof, out payment of the assets of the Company legally available thereforsuch dividend, 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, accounted 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 separately with respect to the Series A Preferred Stock, then two applicable vesting dates. The number of Restricted Stock Units deemed issued to you on a dividend payment date shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to calculated as the greater product of (i) the amount otherwise payable in respect number of such share of Series A Preferred Restricted Stock in accordance with the foregoing paragraph and Units then issued to you pursuant to this Agreement (including Restricted Stock Units previously deemed issued pursuant to this Section 4) multiplied by (ii) the product dividend amount per share, divided by the fair market value of (A) the aggregate dividends payable per a share of TRW Common Stock in such on the date the dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertiblepaid. For purposes of this Section 3(a)Agreement, a dividend period with respect to a Dividend Payment Date the “fair market value” is the period commencing average of the high and low sales prices of a share of TRW Common Stock on the preceding Dividend Payment Date New York Stock Exchange on the date the dividend is paid, as reported by the New York Stock Exchange (or, or if there are no sales on such date, then the closing sale price on such listing on the nearest date before the date the dividend is no preceding Dividend Payment Datepaid). Other than such dividend equivalent and reinvestment rights, the Issue Date) and ending Restricted Stock Units issued to you pursuant to this Agreement shall not entitle you to any rights of ownership of shares of TRW Common Stock, including but not limited to voting rights. Restricted Stock Units deemed issued pursuant to this Section 4 shall vest or be forfeited on the day immediately prior to same date that 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 applicable Restricted Stock Units initially issued any Holder who is contractually obligated pursuant to appear and vote in favor of any proposal made at this Agreement vest or are forfeited. TRW shall provide you with a meeting of stockholders statement 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 number of either) fails so to appear and vote in favor. Any shares Restricted Stock Units issued to such Holders you pursuant to this Agreement after any dividend payment on TRW Common Stock, which shall bear specify the Stockholder Approval Legendnumber of Restricted Stock Units applicable to each scheduled vesting date.

Dividends. Dividends on each Series I Preferred Share shall be cumulative and shall accrue at the then applicable Dividend Rate from the Original Issue Date (aor, for any subsequently issued and newly outstanding shares, from the Dividend Payment Date immediately preceding the issuance date of such shares) until such time as the Corporation pays the dividend or redeems the shares in full in accordance with Section 6 of this Statement of Designation, whether or not such dividends shall have been declared, and whether or not there are profits, surplus, or other funds legally available for the payment of dividends. Holders of shares of Series A I Preferred Stock Shares shall be entitled to cumulative receive 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, from time to time out of the any assets of the Company Corporation legally available thereforfor the payment of dividends at the Dividend Rate per share, when, 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. Dividends, shall not to the extent declared to be paid or by the Corporation in accordance with this Statement of Designation, Table of Contents shall be paid quarterly on each Dividend Payment Date. Dividends shall accumulate in each Dividend Period from and including the preceding Dividend Payment Date (other than the initial Dividend Period, which shall commence on and include the Original Issue Date), to but excluding the applicable Dividend Payment Date for such Dividend Period, and dividends shall accrue on accumulated dividends at the then applicable Dividend Rate. If any Dividend Payment Date during the Fixed Rate Period otherwise would fall on a day that is not a Business Day, then the dividend which would otherwise have been 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 immediately succeeding Business Day without the accumulation of additional dividends or interest. If any Dividend Payment Date during the Floating Rate Period otherwise would fall on which the Company a day that is not prohibited from declaringa Business Day, paying and incurring then the liability in respect of such Deferred Dividend (Payment Date shall be the immediately succeeding Business Day and, as a result, the amount of the dividend for the avoidance of doubt, such Deferred relevant Dividend shall Period will be payable in addition to, and not in lieu ofadjusted accordingly. During the Fixed Rate Period, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of the Series I Preferred Shares, including dividends payable for any other period that is shorter or longer than a full semiannual dividend period partial Dividend Period, will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following During the Meeting End DateFloating Rate Period, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to payable on the Series A I Preferred StockShares, 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 including dividends payable per share for any partial Dividend Period, will be computed on the basis of Common Stock in such dividend period times (B) a 360-day year and 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 days actually elapsed during the 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 LegendPeriod.

Dividends. (a) Holders From and after the date of shares issuance of Series A Preferred the Restricted Stock Units until such time as the Restricted Stock Units shall be forfeited or shall vest, each in accordance with the terms of this Agreement, you will be entitled to cumulative rights to dividends on the Series A Preferred shares of TRW Common Stock payable semiannually, which (if and as declared and paid). Such dividends shall be declared by deemed to be reinvested in additional Restricted Stock Units on the Board date of Directors or payment of such dividend. The number of Restricted Stock Units deemed issued to you on a duly authorized committee thereof, out of the assets of the Company legally available therefor, and dividend payment date shall be payable semiannually commencing on calculated as 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 product of (i) the amount otherwise payable in respect number of such share of Series A Preferred Restricted Stock in accordance with the foregoing paragraph and Units then issued to you pursuant to this Agreement (including Restricted Stock Units previously deemed issued pursuant to this Section 4) multiplied by (ii) the product dividend amount per share, divided by the fair market value of (A) the aggregate dividends payable per a share of TRW Common Stock in such on the date the dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertiblepaid. For purposes of this Section 3(a)Agreement, a dividend period with respect to a Dividend Payment Date the “fair market value” is the period commencing average of the high and low sales prices of a share of TRW Common Stock on the preceding Dividend Payment Date New York Stock Exchange on the date the dividend is paid, as reported in the Midwest Edition of the Wall Street Journal (or, or if there are no sales on such date, then the closing sale price on such listing on the nearest date before the date the dividend is no preceding Dividend Payment Datepaid). Other than such dividend equivalent and reinvestment rights, the Issue Date) and ending Restricted Stock Units issued to you pursuant to this Agreement shall not entitle you to any rights of ownership of shares of TRW Common Stock, including but not limited to voting rights. Restricted Stock Units deemed issued pursuant to this Section 4 shall vest or be forfeited on the day immediately prior to same date that 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 Restricted Stock Units initially issued any Holder who is contractually obligated pursuant to appear and vote in favor of any proposal made at this Agreement vest or are forfeited. TRW shall provide you with a meeting of stockholders statement 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 number of either) fails so to appear and vote in favor. Any shares Restricted Stock Units issued to such Holders shall bear the Stockholder Approval Legendyou pursuant to this Agreement after any dividend payment on TRW Common Stock.

Dividends. (a) Holders of shares of 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 thereof, out of the assets funds of the Company legally available thereforfor payment, and cumulative dividends at the Dividend Rate (“Dividends”). Dividends on the Preferred Stock 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”) paid quarterly in arrears at the rate per annum Dividend Rate in cash or, at the election of 6% per share on the Liquidation Preference; provided thatCompany, subject to receipt of any necessary Shareholder Approval (to the extent necessary), in the event that on any Dividend Payment Date, the Company is not permitted Preferred Stock or Common Stock as provided 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”) 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 Section 4. For the avoidance of doubt, unless prohibited by applicable law, (i) the Board shall not fail to declare such Deferred Dividend Dividends on Preferred Stock and (ii) notwithstanding anything contained herein to the contrary, dividends on the Preferred Stock shall accrue for all fiscal periods during which the Preferred Stock is outstanding, regardless of whether the Company has earnings in any such period, whether there are funds legally available for the payment of such dividends and whether or not such dividends are authorized or declared. Dividends shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable arrears on such succeeding each Dividend Payment Date to the holders of record of Preferred Stock as they appear on the Company’s stock register at the close of business on the relevant Dividend Record Date). The amount of dividends Dividends payable for any other period that is shorter or longer less than a full semiannual dividend 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 on and following . (b) No dividend shall be declared or paid upon, or any sum set apart for the Meeting End Datepayment of dividends upon, in any Outstanding share of the event that dividends are paid on shares of Common Preferred Stock in 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 has been set apart for the payment of such dividend, upon all Outstanding shares of Preferred Stock. (c) No dividends or other distributions (other than a dividend or distribution payable solely in shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock) and cash 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 the Company or on behalf of the Company (except by (i) 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) and cash solely in lieu of fractional shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Parity Stock), (ii) payments in connection with respect the satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (and payment of any corresponding requisite amounts to the Series A Preferred Stockappropriate governmental authority) and (iii) the payment of the Special Dividend Withholding Tax), then unless all Accumulated Dividends (as of the date of such declaration, payment, redemption, purchase or acquisition) shall have been or contemporaneously are declared and paid in cash. Further, no Dividends or other distributions (other than a dividend shall or distribution payable solely in shares of Junior Stock and cash in lieu of fractional shares) may be payable declared, made or paid, or set apart for payment upon, any Junior Stock (except 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) and the payment of the Special Dividend Withholding Tax) unless the payment of the dividend in respect of each share of Series A the Preferred Stock for such the most recent dividend period in an amount equal ending on or prior to the greater date of such declaration or payment has been declared and paid in cash or declared and a sum of cash sufficient for the payment thereof set aside for such payment. Notwithstanding the foregoing, 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 the 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 Parity Stock bear to each other at the time of declaration. (id) Holders of shares of Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends (it being understood that this Section 3(d) shall not limit the amount otherwise payable Company’s obligations pursuant to Section 3(a)). (e) If any Dividend Payment Date falls on a day that is not a Business Day, the required payment will be 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 such share the delay. (f) The holders of Series A shares of 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 in accordance with Sections 8 or 9 following such Dividend Record Date or the foregoing paragraph and (ii) Company’s default in payment of the product dividend due on such Dividend Payment Date. In the case of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number conversion of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes pursuant to Section 5 following the close of this Section 3(a), a dividend period with respect to business on a Dividend Payment Record Date is but prior to the period commencing on the preceding Dividend Payment Date (or, if there is no preceding corresponding Dividend Payment Date, the Issue Dateholders of such shares shall not be entitled to receive the corresponding dividend payment following conversion (it being understood that the value thereof is included in the conversion terms set forth in Section 5). (g) 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) herein to the contrary, and without limiting any other remedy available to the Company or extent that any other partyHolder’s right to participate in any Dividend would result in the Holder exceeding the Beneficial Ownership Limitation, dividends then the rights appurtenant to such Dividend to which such Holder is entitled pursuant hereto shall not accrue or be payable limited to the same extent provided in respect of shares initially issued any Holder who is contractually obligated to appear and vote Section 11 hereof. (h) Except as provided in favor of any proposal made at a meeting of stockholders of Section 8, the Company shall make no payment or allowance for unpaid dividends, whether or not in order to effect arrears, on converted shares of Preferred Stock or for dividends on 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 Common Stock issued to such Holders shall bear the Stockholder Approval Legendupon conversion.