Common use of Dividends Clause in Contracts

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.

Dividends. (a) The holders Holders of the outstanding Class A-1 shares of Series A Preferred Stock shall be entitled to receivecumulative 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 funds the assets of the Company legally available thereforetherefor, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends and shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, semiannually commencing on the fifteenth 180th day of October, January, April and July following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each of such dates 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 date of issuancepreceding Dividend Payment Date (or, and shall be pro-rated for the first such quarterly period if the same there is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateno preceding Dividend Payment Date, the average of Issue Date) and ending on the closing bid prices for day immediately prior to the Company’s common stock for the ten trading days immediately preceding the next Dividend Payment Date. Such 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 on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends payable in respect of shares initially issued any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared Holder who is contractually obligated to appear and set apart for such shares before the Corporation makes vote in favor of any distribution (as hereinafter defined) to the holders proposal made at a meeting of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares stockholders of the CorporationCompany in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the purchase or redemption Affiliates of either) fails so to appear and vote in favor. Any shares of issued to such Holders shall bear the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysStockholder Approval Legend.

Dividends. (aA) The holders of shares of the outstanding Class A-1 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 receivethe Additional Payment. For the avoidance of doubt, out the holders of funds legally available therefore, cumulative dividends at the annual rate of 6Series 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 per share purchase price 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 ($1.10ii). (B) of To the Class A-1 extent that dividends on the Series A Preferred Stock. Such Stock have not been declared and paid, such dividends shall be cumulative and compound quarterly at the Yield from the most recent date to which dividends have been paid, or if no dividends have been paid, from the Issue Date and shall be payable quarterly in shares of the Company’s Class A-1 Preferred Stock quarterly, arrears on the fifteenth day of October, JanuaryJanuary 15, April 15, July 15 and July October 15 of each year or, if any such date is not a Business Day, the next succeeding Business Day commencing [ ], 201[ ] (each of such dates being each, a “Dividend Payment Date”) commencing in the form of additional shares of Series A Preferred Stock, as calculated based on the date Liquidation Preference (other than amounts in respect of issuanceBreaches as described in Section 5(A), and which shall be propaid in U.S. dollars). Any dividend payable on the Series A Preferred Stock for any partial dividend period will be computed on the basis of a 360-rated for day year consisting of twelve 30-day months. Dividends will be payable to holders of the first such quarterly period if Series A Preferred Stock as they appear in the same is less than 91 (ninety-one) days. All shares stock records of common stock the Corporation at the close of business on the applicable record date, which shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in date set by the case of stock on a given dateBoard or, if not set, the average last day of the closing bid prices for the Company’s common stock for the ten trading days calendar month immediately preceding the applicable Dividend Payment Date (each, a “Dividend Record Date. Such ”). (C) No dividends on shares of the Series A Preferred Stock shall accrue on each be authorized by the Board or declared by the Corporation or paid or set apart for payment by the Corporation if such share commencing declaration or payment would be prohibited by law. (D) Notwithstanding the foregoing Section 5(C), dividends on the date of issue, and shall Series A Preferred Stock will accrue from day to daydaily whether or not the Corporation has earnings, whether or not earned or declared. Such dividends shall be cumulative so that if there are funds legally available for the payment of such dividends in respect of any previous quarterly dividend period shall and whether or not have been paid on, the deficiency shall be fully paid on such dividends are declared or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stockaside. Accrued but unpaid dividends shall on the Series A Preferred Stock will not bear interestinterest and holders of the Series A Preferred Stock will not be entitled to any dividends in 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 “Distributioncapital gain dividends” (as defined in this section 5 means Section 857 of the transfer Internal Revenue Code of cash 1986, as amended (the “Code”)) any portion (the “Capital Gains Amount”) of the dividends (as determined for federal income tax purposes) paid or property without considerationmade available for the year to holders of all classes of stock (the “Total Dividends”), whether then the portion of the Capital Gains Amount that shall be allocable to the 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 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 way of the Corporation to its stockholders. (F) No dividends or other distributions (other than a dividend or otherwise (except a dividend 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 than repurchases pursuant to binding contractual commitments of Junior Stock held by employees, directors or consultants upon termination of their employment or services) by the Corporation) Corporation or the purchase or redemption on its behalf (except by conversion of shares of the 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 payment of the dividend due on that Dividend Payment Date. A holder of Series A Preferred Stock on a Dividend Record Date that surrenders (or whose transferee surrenders) any shares for conversion on the corresponding Dividend Payment Date shall receive the dividend payable by the Corporation for cash or property (except for an exchange on the Series A Preferred Stock on that date, and the converting holder need not include payment in the amount of such dividend upon surrender of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Series A Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysfor conversion.

Dividends. (a) The holders Holders of the outstanding Class A-1 Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors either out of funds legally available therefore, cumulative dividends at therefor or through the annual rate issuance of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterlycommon stock, and the Company shall accrue, quarterly in arrears on the fifteenth day March 31, June 30, September 30, and December 31 of Octobereach year, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date earlier of issuanceDecember 31, 2008, or any Conversion Date (as defined below), cumulative dividends on the Preferred Stock at the rate per share (as a percentage of the Stated Value per share) equal to five percent (5%) per annum, payable in cash or shares of Common Stock (as defined in Section 7) at the option of the Holders. The Company may pay, at its option, accrued dividends at any time while the Preferred Stock remains outstanding. The Company shall pay all accrued and unpaid dividends within five (5) days following either (a) the conversion of any or all of the Preferred Stock or (b) the redemption by the Company of any or all of the remaining outstanding shares of Preferred Stock. The number of shares of Common Stock issuable as payment of dividends hereunder shall equal the aggregate dollar amount of dividends then being paid, divided by the Conversion Price (as defined in Section 5(c)) then in effect. Dividends on the Preferred Stock shall be calculated on the basis of a 360-day year, shall accrue daily commencing the Issuance Date (as defined in Section 7), and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall deemed to accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declareddeclared and whether or not there are profits, surplus or other funds of the Company legally available for the payment of dividends. Such 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 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 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 cumulative so 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 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 if is addressed to the Company. (b) Notwithstanding anything to the contrary contained herein, the Company may not issue shares of Common Stock in payment of dividends on the Preferred Stock (and must deliver cash in respect thereof) if: (i) the number of shares of Common Stock 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 any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such dividends a sufficient number of shares before the Corporation makes any distribution (as hereinafter defined) to the holders 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 the Common Stock is then listed for trading). Accrued but unpaid Payment of dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of Common Stock is further subject to the Corporationprovisions of Section 5. (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), nor shall the Company directly or indirectly pay or declare any dividend or make any distribution upon, nor shall any distribution be made in respect of, any Junior Securities, nor shall any monies be set aside for or applied to the purchase or redemption of shares of the Corporation for cash (through a sinking fund or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms otherwise) of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysJunior Securities.

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) The 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 the outstanding Class A-1 Preferred Stock Parent’s board of 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 receivethe Parent and the Parent may redeem, out repurchase, acquire or retire an amount of funds legally available thereforeits capital stock or warrants or options therefor, cumulative dividends or declare and pay any dividend or make any distribution on its capital stock (collectively, “Distributions”), either (a) if at the annual rate time of 6% per annum of making such Distribution the per share purchase price Leverage Ratio ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, calculated on a pro forma basis based on the fifteenth day of October, January, April Parent’s most recent financial statements delivered pursuant to Section 6.1 and July (each of such dates being a “Dividend Payment Date”) commencing on giving effect to any Permitted Acquisition since the date of issuancesuch financial statements, such Distribution and shall be pro-rated for any Indebtedness incurred in connection therewith, all in accordance with the first such quarterly period if the same terms of this Agreement) is less than 91 or equal to 2.75 to 1.00, on an unlimited basis, and (ninety-oneb) days. All shares of common stock shall be valued if at the Fair Market Value thereof. As used herein Fair Market Value shall mean in time of making such Distribution the case of stock Leverage Ratio (calculated on a given date, pro forma basis based on the average of the closing bid prices for the CompanyParent’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the date of issuesuch financial statements, such Distribution and shall accrue from day to dayany Indebtedness incurred in connection therewith, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends all in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to accordance with the terms of any employee incentive plan, agreement or arrangementthis Agreement) including any such transfer, purchase or redemption by a subsidiary of is greater than 2.75 to 1.00 in an amount not greater than the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysMaximum Payment Amount.

Dividends. (a) The holders of Subject to its ability to do so under applicable law, the outstanding Class A-1 Preferred Stock shall be entitled Buyer agrees to receive, out of funds legally available therefore, cumulative dividends at pay the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, First Year Dividend to its shareholders on the fifteenth day of October, January, April and July First Anniversary. (each of such dates being a “Dividend Payment Date”b) commencing on the date of issuanceThe Seller shall, and shall be pro-rated for 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 first such quarterly period if Buyer shall cause the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateInitial Stockholders, the average 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 closing bid prices for the Company’s common stock for the ten trading days immediately preceding the restrictions contained in Section 6(h), a Person described in Section 7(b) or (c) may: (i) sell any Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date Waiver Securities to an unrelated third party free of issueany restrictions imposed by a Dividend Waiver Agreement, and shall accrue from day to dayupon such sale, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of the Dividend Escrow Agreement, if applicable, the Escrow Agent shall release such Dividend Waiver Securities from escrow upon receipt by it of the agreed consideration therefor and shall pay to the seller the amount of the consideration received less such amount as would be necessary to pay the First Year Dividend on such Dividend Waiver Securities, which amount shall be retained by the Escrow Agent and held in escrow pursuant to the terms of the Dividend Escrow Agreement. Any amounts deposited in escrow pursuant to this paragraph and not used to pay the First Year Dividend shall be refunded, together with any employee incentive planinterest accrued thereon, agreement to such seller upon the payment of the First Year Dividend; and (ii) exercise any warrants, rights or arrangement) including other options in respect of any Dividend Waiver Securities, and upon notifying the Escrow Agent of such exercise the Escrow Agent shall promptly take all such steps as are necessary to exercise such warrants, rights or other options in respect of any Dividend Waiver Securities, provided that any shares of Buyer Common Stock issuable upon any such transfer, purchase or redemption exercise shall remain subject to the applicable Dividend Waiver Agreement and shall be held in escrow by a subsidiary the Escrow Agent and pursuant to the terms of the Corporation. Dividend Escrow Agreement. (e) The time of any distribution by way of dividend Buyer shall be the date of declaration thereof obligated and the time of agrees to pay any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time and all expenses of the distribution is Escrow Agent in connection with the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysDividend Escrow Agreement.

Dividends. (a) The So long as any shares of Preferred Stock shall be outstanding, the holders of the outstanding Class A-1 such Preferred Stock shall be entitled to receive, receive out of any funds legally available thereforetherefor, cumulative preferential dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, Dividend Rate on the fifteenth day of OctoberLiquidation Preference hereunder, January, April and July (each of such dates being a “Dividend Payment Date”) commencing payable quarterly on the date last Business Day of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declaredcalendar quarter. Such dividends shall be cumulative so that if and begin to accrue from the Original Issue Date, whether or not declared and whether or not there shall be net profits or net assets of the Company legally available for the payment of those dividends. (b) The dividend will be payable (i) prior to the effective date of a Chapter 11 plan of reorganization with respect to the Company, in the form 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 and at the Company's election, in cash or in shares of Common Stock having an Appraised Value equal to such cash dividend payment. (c) So long as any shares of Preferred Stock shall be 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 any previous quarterly the Preferred Stock for all past and current dividend period shall not periods have been paid onand all amounts in respect of the redemption of Preferred Stock pursuant to Section 6 have been paid, the deficiency and (ii) no shares of Common Stock shall be fully paid on purchased, redeemed or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees Company and no funds shall be paid into or set aside or made available for a sinking fund for the purchase, redemption or acquisition thereof until all dividends in respect of the Preferred Stock for all past and current dividend periods have been paid and all amounts in respect of the redemption of Preferred Stock pursuant to Section 6 have been paid. (d) Notwithstanding anything to the terms contrary contained herein, if, on any date, an Event of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend Default shall have occurred and be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporationcontinuing, whether or not pursuant 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 contract compound annual rate of an earlier date; provided that where a negotiable debt security 16%, for as long as such Event of Default is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) dayscontinuing.

Dividends. (a) The holders Subject to sub-clause (b) below, the Parent will not, and will not permit any of its Subsidiaries to, authorize, declare or pay any Dividends with respect to the Parent or any of its Subsidiaries, except that: (i) Subsidiaries of the outstanding Class A-1 Preferred Stock 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 connection with such Dividends or other distributions to NCL International Ltd., NCL America Holdings, LLC or Arrasas Limited shall be entitled to receive, out received promptly by the Parent directly or indirectly by way of funds legally available therefore, cumulative dividends at Dividend; (ii) the annual rate of 6% per annum Parent may pay Dividends in respect of the per share purchase price ($1.10) tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns for each relevant jurisdiction of the Class A-1 Preferred Stock. Such dividends shall be payable in shares NCLC Group or holder of the CompanyParent’s Class A-1 Preferred Capital Stock quarterlywith respect to income taxable as a 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 fifteenth day Parent may pay Dividends in an amount not to exceed 50% of October, January, April Consolidated Net Income of the Parent and July its Subsidiaries for the period (each of such dates being a “Dividend Payment Date”taken as one period) commencing on January 1, 2010 and ending on the 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 time of issuance, such Dividend and shall be pro-rated after giving effect thereto the ratio of Total Net Funded Debt to Consolidated EBITDA for the first such quarterly period if four consecutive fiscal quarters last ended for which financial statements have been provided to the same Facility Agent pursuant to Section 9.01 is less than 91 5.50:1.00. (ninety-oneb) days. All shares of common stock The Parent shall be valued at not authorize, declare or pay any Dividends between April 1, 2020 and the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends latest Maturity Date in respect of the Deferred Loans, provided that any previous quarterly dividend period breach of this sub-clause shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders result in an Event of Common Stock. Accrued Default but unpaid dividends shall not bear interest. “Distribution” will instead result in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysmandatory prepayment event under Section 4.02(d).

Dividends. (a) The holders Each Holder of the outstanding Class A-1 Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforetherefor, cumulative cash dividends on each share of Series A Preferred Stock at the annual a rate of 6% per annum equal to 13.0% of the per share purchase price ($1.10) Liquidation Preference of the Class A-1 Preferred Stocksuch share. Such All dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to daycumulative, 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 annually 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. Such 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 cumulative 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 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 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 Series 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 a prorated dividend on the Series A Preferred Stock at the rate aforesaid from the Dividend Payment Date 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 amount of such unpaid dividends in respect shall be paid before any sum shall be set aside for or applied by the Corporation to the purchase, redemption or other acquisition for value of any previous quarterly shares of Series A Junior Securities (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend period shall not have been paid on, the deficiency or other distribution shall be fully paid on or declared and set apart for payment on any Series A Junior Securities (the date of any such shares before actions to be referred to as the "Series A Junior Payment Date"); provided, however, that the foregoing shall not (i) prohibit the Corporation makes any distribution from repurchasing shares of Series A Junior Securities from a Holder who is, or was, a director or employee of the Corporation (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares an affiliate of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property and (except for an exchange of shares of the Corporation or shares acquired by ii) prohibit the Corporation from employees pursuant making dividends, other distributions, redemptions, repurchases or acquisitions in respect of Series A Junior Securities payable in Series A Junior Securities and cash in lieu of fractional shares of such Series A Junior Securities. (f) Dividends payable on Series A Preferred Stock for any period less than one year shall be computed on the basis of a 360-day year consisting of twelve 30-day months and the actual number of days elapsed in the period for which such dividends are payable. (g) The Corporation shall not claim any deduction from gross income for dividends paid on Series A Preferred Stock in any Federal income tax return, claim for refund, or other statement, report or submission made to the terms 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)(1) of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor provision). At the reasonable request of any employee incentive planHolder (and at the expense of such Holder), agreement or arrangementthe Corporation shall join in the submission to the Internal Revenue Service of a request for a ruling that the dividends paid on Series A Preferred Stock shall be eligible for the dividends received deduction under Section 243(a) (1) including any such transfer, purchase or redemption by a subsidiary of the CorporationCode (or any successor provision). The time 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 distribution by way dividends (within the meaning of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time Section 316(a) of the distribution is Code or any successor provision) paid on Series A Preferred Stock. To the date when extent possible, the Corporation acquires the shares in such exchange. The Board principles of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled this paragraph A(3)(g) shall also apply with respect to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysstate and local income taxes.

Dividends. (a) The holders Holders of the issued and outstanding Class A-1 shares of Preferred Stock shall be entitled to receive, out of funds assets legally available thereforefor the payment of dividends, cumulative dividends at on the annual rate terms described below: (i) Holders of 6% per annum shares of Preferred Stock shall be entitled to participate equally and ratably with the per share purchase price holders of shares of Common Stock in all dividends paid on the shares of Common Stock ($1.10other 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 Class A-1 Preferred last sentence of Section 6(a)(i)(B)). Dividends payable pursuant 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. Such , 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), the Corporation shall pay, if, as and when declared by the Board of Directors, out of funds legally available therefor, on 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 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 payable quarterly in arrears, if, as and when so authorized and declared by the Board of Directors, on each Preferred Dividend Payment Date, commencing on the first Preferred Dividend Payment Date following the Issuance Date of such share. The amount of Preferred Dividends accruing with respect to any share of Preferred Stock for any day shall be 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 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 Preferred Stock for any day shall be determined by dividing (x) 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 of Preferred Dividends payable with respect to any share of Preferred Stock for any Payment Period shall equal the sum of the Preferred Dividends accrued 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) The Preferred Dividends may, at the 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 extent payment in cash on such date would be prohibited under the terms, conditions or provisions of 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 the Company’s Class A-1 Preferred Stock quarterlywith 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 Preferred Stock to 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. Each Participating Dividend or Preferred Dividend shall be payable to the Holders of Preferred Stock as they appear on the fifteenth day Register at the close of October, January, April and July business on the record date designated by the Board of Directors for such dividends (each of such dates being date, a “Dividend Payment Record Date”), which (i) commencing on with respect to Participating Dividends, shall be the same day as the record date for the payment of issuancedividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Preferred Dividends, shall be pro-rated for the first such quarterly period if the same is not more than thirty (30) days nor less than 91 ten (ninety-one10) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the applicable Preferred Dividend Payment Date. Such dividends shall accrue on each such share commencing Notwithstanding the foregoing, but subject to the proviso in the first sentence of Section 4(a)(iii), the Base Amount Accrued Dividends may be declared and paid in cash or in shares of Preferred Stock at any time to Holders of record on the Dividend Payment Record Date therefor. (b) Upon the occurrence of a Triggering Event, the Dividend Rate shall increase by 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. The Dividend Rate shall not be increased further pursuant to this Section 4(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 consent of issuethe Holders representing at least a majority of the then-issued and outstanding shares of Preferred Stock, and shall accrue from day to day, whether or not earned or declared. Such no dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been declared or paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes payment, or other distributions declared or made, upon any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends Junior Securities, nor shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without considerationany Junior Securities be redeemed, whether by way of dividend purchased or otherwise acquired for any consideration (except nor shall any moneys be paid to or made available for a dividend in sinking fund for the redemption of any shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred Junior Securities) by the Corporation, whether directly or not pursuant indirectly (except, subject to a contract and in accordance with the provisions of an earlier date; provided that where a negotiable debt security is issued in 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 time consent of the distribution is Holders representing at least a majority of the date when then-issued and outstanding shares of Preferred Stock, the Corporation acquires shall not (i) declare, pay or 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 of Common Stock from employees, officers or directors of the shares Corporation in such exchange. The Board the ordinary course of Directors may fix business) for any consideration or pay any moneys or make available for a record date sinking fund for the determination redemption of holders any shares of Class A-1 such Junior Securities, unless, in each case, (A) immediately before and after the taking of such action, the fair value of the 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 entitled Stock), (B) immediately after the taking of such action, the Corporation, in its good faith judgment, would be able to receive payment pay all of a dividend declared thereonits debts (including the aggregate Liquidation Preference and the aggregate Accrued Dividends of the Preferred Stock) as they are reasonably expected to come due and (C) such action is otherwise in compliance with applicable Law. (e) For the avoidance of doubt, which record date the consequences described in Sections 4(b), (c) and (d) above shall be no more than sixty constitute the sole and exclusive remedies of the Holders upon the occurrence of the Triggering Event described in clause (60vii) daysof the definition thereof.

Dividends. (a) The holders Each Holder of the outstanding Class A-1 Series B Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforetherefor, cumulative cash dividends on each share of Series B Preferred Stock at the annual a rate of 6% per annum equal to 13.5% of the per share purchase price ($1.10) Liquidation Preference of the Class A-1 Preferred Stocksuch share. Such All dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to daycumulative, 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 annually 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. Such 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 cumulative 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 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 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 Series 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 a prorated dividend on the Series B Preferred Stock at the rate aforesaid from the Dividend Payment Date 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 amount of such unpaid dividends in respect shall be paid before any sum shall be set aside for or applied by the Corporation to the purchase, redemption or other acquisition for value of any previous quarterly shares of Series B Junior Securities (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend period shall not have been paid on, the deficiency or other distribution shall be fully paid on or declared and set apart for payment on any Series B Junior Securities (the date of any such shares before actions to be referred to as the "Series B Junior Payment Date"); provided, however, that the foregoing shall not (i) prohibit the Corporation makes any distribution from repurchasing shares of Series B Junior Securities from a Holder who is, or was, a director or employee of the Corporation (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares an affiliate of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property and (except for an exchange of shares of the Corporation or shares acquired by ii) prohibit the Corporation from employees pursuant making dividends, other distributions, redemptions, repurchases or acquisitions in respect of Series B Junior Securities payable in Series B Junior Securities and cash in lieu of fractional shares of such Series B Junior Securities. (f) Dividends payable on Series B Preferred Stock for any period less than one year shall be computed on the basis of a 360-day year consisting of twelve 30-day months and the actual number of days elapsed in the period for which such dividends are payable. (g) The Corporation shall nor claim any deduction from gross income for dividends paid on Series B Preferred Stock in any Federal Income tax return, claim for refund, or other statement, report or submission made to the terms 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 employee incentive planHolder (and at the expense of such Holder), agreement or arrangementthe 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) including any such transfer, purchase or redemption by a subsidiary of the CorporationCode (or any successor provision). The time 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 distribution by way dividends (within the meaning of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time Section 316(a) of the distribution is Code or any successor provision) paid on Series B Preferred Stock. To the date when extent possible, the Corporation acquires the shares in such exchange. The Board principles of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled this paragraph B(3)(g) shall also apply with respect to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysstate and local income taxes.

Dividends. (a) The holders of the then outstanding Class A-1 Series A Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors of the Corporation out of any funds legally available thereforetherefor, cumulative dividends at the annual rate of 6% $2.00 per annum share per year, payable in cash, except as provided below, in equal amounts quarterly on the fifteenth day, or if not a Business Day, the next succeeding Business Day, of January, April, July and October in each year, beginning ______________, 1997 (each such day being hereinafter called a "Quarterly Dividend Date" and each period ending on a Quarterly Dividend Date being hereinafter called a "Dividend Period"), to shareholders of record at the close of business on such date as shall be fixed by the Board of Directors of the Corporation at the time of declaration of the dividend (the "Record Date"), which shall be not fewer than 10 nor more than 30 days preceding the Quarterly Dividend Date. The amount of any dividend payable for the initial Dividend Period and for any other Dividend Period shorter than a full Dividend Period shall be prorated and computed on the basis of a 360-day year of twelve 30-day months. Dividends paid on the Series A Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a per share purchase price basis among all such shares at the time outstanding. Notwithstanding the foregoing, for any twelve ($1.1012) Dividend Periods the Company shall have the right to pay the dividend in additional shares of Series A Preferred Stock determined by dividing the total amount of the Class A-1 dividend to be paid in shares of Series A Preferred Stock by the Liquidation Value (as defined herein) per share of Series A Preferred Stock. Such dividends The issuance of additional shares of Series A Preferred Stock pursuant to this subparagraph (3) shall be payable in evidenced by a stock certificate representing such shares of the Company’s Class A-1 Preferred Stock quarterly, issued on the fifteenth day of October, January, April related Quarterly Dividend Date and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid delivered on or declared and set apart for such shares before the Corporation makes immediately thereafter. Notwithstanding any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without considerationother provision hereof, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of no fractional shares of the Corporation for cash or property (except for an exchange shall be issued in connection with the payment of any dividend on Series A Preferred Stock in additional shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms Series A Preferred Stock. Instead, any holder of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 outstanding Series A Preferred Stock entitled to receive having a fractional interest arising upon the payment of a dividend declared thereonin additional shares of Series A Preferred Stock shall, on the related Quarterly Dividend Date, be paid an amount in cash equal to the Liquidation Value times the fraction of a share of Series A Preferred Stock to which record date such holder would otherwise be entitled. In the event the Company fails to pay any dividend on the Series A Preferred Stock on any Quarterly Dividend Date, the Company shall not pay any dividends on any other class of stock of the Company (other than (i) pro rata with other securities of the Company ranking pari passu with the Series A Preferred Stock or (ii) with Junior Shares) until such dividend on the Series A Preferred Stock has been paid. Except as provided in these Articles Supplementary, the Series A Preferred Stock shall not be no more than sixty (60) daysentitled to participate in the earnings or assets of the Corporation.

Dividends. (a) The Subject to clause 11(c) below, if the Company declares and pays any dividends on the Ordinary Shares, then, in that event, holders of the outstanding Class A-1 Preferred Stock Preference Shares shall be entitled to 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 record 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”), the Board of Directors shall (subject to the Company’s compliance with the provisions of the Act and the Articles) declare and the holders of Preference Shares shall receive, out of funds legally available thereforein addition to the dividends described in clause 11 (a), cumulative dividends at the an annual rate of 6equal to 10% per annum of the per share purchase price Accreted Value, calculated on the basis of a 360-day year, consisting of twelve 30-day months, which shall accrue on a daily basis from the 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 ($1.10) of the Class A-1 Preferred Stock. Such unless any such day is not a Business Day, in which event such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of Octobernext succeeding Business Day, January, April and July without accrual to the actual payment date) (each of such dates being date, a “Dividend Payment Date”) commencing on ). Unless otherwise specified in a resolution of directors, accrued and unpaid dividends shall compound and be added to the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Accreted Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days effect immediately preceding the prior to each Dividend Payment Date. Such ; provided, that, in lieu thereof, such accrued and unpaid dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall may (i) be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends Preference Shares in cash or (ii) be paid in cash or compound and be added to the Accreted Value in any combination thereof, in each case as specified in a resolution of directors. (c) The Company shall not bear interest. “Distribution” in this section 5 means the transfer of cash declare or property without considerationpay any dividends on, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) make any other distributions with respect to or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transferredeem, purchase or redemption by a subsidiary otherwise acquire for consideration, any Junior Securities unless and until (i) all accrued and unpaid dividends on the Preference Shares have been paid in full and (ii) prior to the IPO Dividend Date, the affirmative vote or written consent of the Corporation. The time 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) redemption, purchase or other acquisition of 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 the Company or any of its subsidiaries; (ii) exchange, redemption, reclassification or conversion of any distribution by way class or series of dividend shall be Junior Securities for any class or series of Junior Securities; or (iii) purchase of fractional interests in any Junior Securities under the date conversion or exchange provisions of declaration thereof and such Junior Securities or the time security being converted or exchanged, or in connection with any combination or reclassification of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysJunior Securities.

Dividends. (a) The Subject to Section 11.8, beginning on July 1, 2027, holders of the issued and outstanding Class A-1 Series D Preferred Stock Shares shall be entitled to receive, when, as and if approved by the Board of Directors out of funds of the Corporation legally available thereforefor the payment of distributions and declared by the Corporation, cumulative preferential dividends at the annual a rate of 6% per annum equal to the Dividend Rate of the per share purchase price ($1.10) Liquidation Preference of the Class A-1 Series D Preferred StockShares in effect on the first calendar day of the applicable Dividend Period. Such dividends All Dividends on the Series D Preferred Shares shall be paid in cash or other property, shall accrue and accumulate (whether or not declared or paid) on each issued and outstanding share of the Series D Preferred Shares on a daily basis from July 1, 2027, and shall be payable quarterly in shares of the Company’s Class A-1 Preferred Stock quarterly, equal amounts in arrears on the fifteenth last calendar day of October, January, April and July each Dividend Period (each of such dates day being hereinafter called a “Dividend Payment Date”); provided that if any Dividend Payment Date is not a Business Day, then the dividend 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 interest or additional dividends or other sums shall accrue on the amount so payable from such Dividend Payment Date to such next succeeding Business Day. Any dividend payable on the Series D Preferred Shares for any partial Dividend Period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends shall be payable to holders of record as they appear in the stock records of the Corporation at the close of business on the applicable record date, which shall be the tenth day preceding the applicable Dividend Payment Date, or such other date designated by the Board of Directors or an officer of the Corporation duly authorized by the Board of Directors for the payment of dividends that is not more than 30 nor less than ten days prior to such Dividend Payment Date (each such date, a “Dividend Record Date”). (b) If the Corporation fails to pay any dividends on the Series D Preferred Shares in full for any three consecutive or non-consecutive Dividend Periods (such a failure, a “Dividend Default”), then: (i) commencing on the first day after the Dividend Payment Date on which a Dividend Default occurs and continuing until the date a Correction Event with respect to such Dividend Default occurs, the then-applicable Liquidation Preference per Series D Preferred Share shall increase by $0.50 per Series D Preferred Share; and (ii) following any Dividend Default that has been cured by the Corporation as provided above in subparagraph (i) of issuancethis paragraph (b), if the Corporation subsequently fails to pay dividends on the Series D Preferred Shares in full for any subsequent three consecutive or non-consecutive Dividend Periods, such subsequent failure shall constitute a separate Dividend Default, and the foregoing provisions of subparagraph (i) of this paragraph (b) shall be pro-rated immediately apply until such time as a Correction Event occurs with respect to such subsequent Dividend Default. (c) If, at any time, (x) the Series B Preferred Shares obtain a National Market Listing, and either (i) the Corporation fails to obtain a National Market Listing for the Series D Preferred Shares within 60 consecutive days following the Corporation having obtained a National Market Listing for the Series B Preferred Shares, or (ii) the Series D Preferred Shares are delisted from the National Market Listing for a period of 90 consecutive days or longer following the Corporation having obtained a National Market Listing for the Series B Preferred Shares, or (y) the Common Shares are delisted from the National Market Listing for a period of 90 consecutive days or longer (any of the foregoing such events, a “Delisting Event”), then: (i) commencing on the first day after the Delisting Event occurs and continuing until the date a Correction Event with respect to such quarterly period if the same is less than 91 Delisting Event occurs, (ninety-oneA) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateDelisting Event with respect to the Series D Preferred Shares, the average then-applicable Liquidation Preference per Series D Preferred Share shall increase by $0.50 per Series D Preferred Share and (B) in the case of a Delisting Event with respect to the Common Shares, the then-applicable Liquidation Preference per Series D Preferred Share shall increase by $1.00 per Series D Preferred Share; and (ii) following any Delisting Event that has been cured by the Corporation as provided above in subparagraph (i) of this paragraph (c), if (A) the Series D Preferred Shares subsequently cease to be subject to a National Market Listing for 90 consecutive days or longer or (B) the Common Shares subsequently cease to be subject to a National Market Listing for 90 consecutive days or longer, either of the closing bid prices foregoing such events shall constitute a separate Delisting Event with respect to the applicable shares, and the foregoing provisions of subparagraph (i) of this paragraph (c) shall immediately apply until such time as a Correction Event occurs with respect to such subsequent Delisting Event. (d) No distribution or dividend on the Series D Preferred Shares will be declared by the Corporation or paid or Set Apart for Payment by the Corporation at such time as the terms and provisions of Senior Shares or any agreement of the Corporation (whether now existing or arising hereafter), including any agreement relating to its indebtedness, prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting aside of funds is restricted or prohibited under the Official Code of Georgia Annotated or other applicable law; provided, however, notwithstanding anything to the contrary contained herein, dividends on the Series D Preferred Shares shall continue to accrue and accumulate pursuant to the terms hereof regardless of whether (i) any or all of the foregoing restrictions exist; (ii) the Corporation has earnings or profits; (iii) there are funds legally available for the Company’s common stock for payment of such dividends; or (iv) such dividends are authorized by the ten trading days immediately preceding Board of Directors. Accrued and unpaid dividends on the Series D Preferred Shares will accumulate commencing as of the Dividend Payment Date. Such dividends Date on which they first become payable. (e) Except as provided in paragraph (f) of Section 11.3 and subject to paragraph (g) of Section 11.3, no distributions or dividends, in cash or otherwise, may be declared or paid or Set Apart for Payment upon the Common Shares or upon any Junior Shares or Parity Shares, nor shall accrue on each any Common Shares or any Junior Shares or Parity Shares be redeemed, purchased or otherwise acquired directly or indirectly for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such share commencing stock) by the Corporation (except by conversion into or exchange for Junior Shares or by redemption, purchase or acquisition of stock required under any employee benefit plan of the Corporation), unless, on the most recently preceding Dividend Payment Date on which dividends on the Series D Preferred Shares became payable, the Corporation paid such dividends together with all accumulated and unpaid dividends to date on the Series D Preferred Shares in full in cash or other property. (f) When all dividends accumulated and unpaid to date are not paid in full in cash or other property (or a sum of issuecash or other property sufficient for such full payment is not so Set Apart for Payment) upon the Series D Preferred Shares, and shall accrue from day to dayall dividends declared, whether paid or not earned or declared. Such dividends Set Apart for Payment upon the Series D Preferred Shares, shall be cumulative so that if such dividends declared and paid in cash or other property, as applicable, or declared and a sum of cash or other property, as applicable, sufficient for the payment thereof shall be Set Apart for Payment thereof. No interest, or sum of money or other property in lieu of interest, shall be payable in respect of any previous quarterly dividend period shall not have been paid onpayment on Series D Preferred Shares or on any dividend payment or other payment on any Junior Shares which may be in arrears. (g) So long as any Series D Preferred Shares remain outstanding, the deficiency no cash or stock dividends shall be fully paid on or declared and set apart for such shares before made to any holders of Common Shares, Series A Preferred Shares or any class or series of Junior Shares, without the Corporation makes any distribution (as hereinafter defined) consent of the majority of the votes entitled to be cast by the holders of Common Stock. Accrued but the outstanding Series D Preferred Shares. (h) Any dividend payment made on the Series D Preferred Shares shall first be credited against the earliest accumulated accrued and unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in due with respect to such shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and which remains payable at the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) dayspayment.

Dividends. (a) The holders Holders of the then outstanding Class A-1 shares of Series D Preferred Stock shall be entitled to receive, when and as authorized by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative preferential cash dividends at the annual rate of 67.625% of the $25.00 liquidation preference per annum (equivalent to a fixed annual amount of the $1.90625 per share purchase price ($1.10) of the Class A-1 Preferred Stockshare). Such dividends shall be cumulative from [ • ], 20211 and shall be payable quarterly in shares of the Company’s Class A-1 Preferred Stock quarterly, arrears on the fifteenth day of October, Januaryor before January 15, April 15, July 15 and July October 15 of each year or, if not a business day, the next succeeding business day (each of such dates being each, a “Dividend Payment Date”) commencing ). Any dividend payable on the date of issuance, and Series D Preferred Stock for any partial dividend period shall be procomputed on the basis of a 360-rated for the first such quarterly period if the same is less than 91 (ninetyday year consisting of twelve 30-one) daysday months. All shares of common stock Dividends shall be valued payable to holders of record as they appear in the stock records of the Corporation at the Fair Market Value thereof. As used herein Fair Market Value close of business on the applicable record date, which shall mean in be the last day of each of March, June, September and December, as the case of stock on a given datemay be, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the applicable Dividend Payment Date (each, a “Dividend Record Date. Such ”). (b) No dividends on shares of Series D Preferred Stock shall be declared by the Corporation or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law. (c) Notwithstanding the foregoing, dividends on the Series D Preferred Stock shall accrue on each such share commencing on whether or not the date terms and provisions set forth in Section 3(b) hereof at any time prohibit the current payment of issue, and shall accrue from day to daydividends, whether or not earned the Corporation has earnings, whether or declared. Such dividends shall be cumulative so that if not there are funds legally available for the payment of such dividends in respect of any previous quarterly dividend period shall and whether or not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stockdividends are declared. Accrued but unpaid dividends on the Series D Preferred Stock shall not bear interest. “Distribution” accumulate as of the Dividend Payment Date on which they first become payable. (d) Except as provided in this section 5 means Section 3(e) hereof, unless full cumulative dividends on the transfer of cash Series D Preferred Stock have been or property without considerationcontemporaneously are declared and paid or declared and a sum sufficient for the payment thereof is set apart for payment for all past dividend periods and the then current dividend period, whether by way of dividend or otherwise no dividends (except a dividend other than dividends in shares of Common Stock or dividends in shares of any series of Preferred Stock ranking junior to the CorporationSeries D Preferred Stock as to dividends and upon liquidation) shall be declared or paid or set aside for payment nor shall any other distribution be declared or made upon the purchase Common Stock, or any Preferred Stock of the Corporation ranking junior to or on a parity with the Series D Preferred Stock as to dividends or upon liquidation, nor shall any shares of Common Stock, or any shares of Preferred Stock of the Corporation ranking junior to or on a parity with the Series D Preferred Stock as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for other capital stock of the Corporation ranking junior to the Series D Preferred Stock as to dividends and upon liquidation and except for transfers made pursuant to the provisions of Article VII of the Charter). (e) When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) on the Series D Preferred Stock and the shares of any other series of Parity Stock, all dividends declared upon the Series D Preferred Stock and the shares of any other series of Parity Stock shall be declared pro rata so that the amount of dividends declared per share of Series D Preferred Stock and the shares of any other series of Parity Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series D Preferred Stock and the shares of any other series of Parity Stock (which shall not include any accrual in respect of unpaid dividends for prior dividend periods if such preferred stock does not have a cumulative dividend) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on Series D Preferred Stock which may be in arrears. 1 To be the last dividend payment date before the Effective Time of the Merger (provided that if such Effective Time occurs after the dividend record date for a dividend and before the dividend payment date for such dividend, such date shall be the dividend payment date for such dividend). (f) Any dividend payment made on shares of the Corporation for cash or property (except for an exchange Series D Preferred Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to such shares which remains payable. Holders of shares of the Corporation or shares acquired by the Corporation from employees pursuant Series D Preferred Stock shall not be entitled to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporationdividend, whether payable in cash, property or not pursuant to a contract stock in excess of an earlier date; provided that where a negotiable debt security is issued in exchange for shares full cumulative dividends on the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Series D Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysas described above.

Dividends. (a) The holders of No dividends or other distributions declared after the outstanding Class A-1 Preferred Effective Time on AFC Common Stock shall be entitled paid with respect to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in any shares of AFC Common Stock represented by an APY Stock Certificate until such APY Stock Certificate is surrendered for exchange according to the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) daysprocedures described above. All No fractional shares of common stock shall AFC Common Stock will be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees issued pursuant to the terms Merger. In lieu of the issuance of any employee incentive planfractional shares of AFC Common Stock, agreement or arrangement) including any cash will be paid to holders of such transfer, purchase or redemption by a subsidiary fractional share in the amount of the Corporation. The time product of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred such fractional share multiplied by the Corporation, whether or not pursuant Average Stock Price. THE RECAPITALIZATION APY is currently authorized to a contract issue only one class of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchangeAPY Common Stock. The Board of Directors may fix of APY has approved, and SMA, the holder of more than a record date majority of the 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 Merger, 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 remain outstanding after the determination Merger. See "The Charter Amendment" and "Appendix A-2--Form of holders 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 Merger Agreement and related agreements; (iii) authorized capital stock; (iv) ownership of Class A-1 Preferred Stock entitled to receive subsidiaries; (v) the lack 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; (vii) compliance with law and contract; (viii) the filing of certain documents with the Commission; (ix) the accuracy of financial statements; (x) the absence of certain litigation; (xi) the absence of certain changes including those having a material adverse effect, the payment of dividends other than regular quarterly cash dividends and a dividend declared thereonchange in accounting policy; (xii) the receipt of fairness opinions; and (xiii) the lack of any contract or agreement obligating the payment of finder's fees, which record date shall be brokerage or agent's commissions, other than agreements with Salomon Brothers and ▇▇▇▇▇▇▇ ▇▇▇▇▇. In addition, AFC represents that (i) immediately following the Effective Time, it will have available funds to satisfy the cash portion of the Merger Consideration; and (ii) to its knowledge, no more than sixty (60) days.event has occurred or condition exists in connection with the Merger that would cause it to fail to satisfy any material applicable statute or written regulation. CERTAIN COVENANTS Conduct of Business Pending the Reorganization. Pursuant to the Merger Agreement, AFC and APY have made various customary covenants relating to the Merger Transactions. APY has agreed that, prior to the 47

Dividends. (a) The In the event that a distribution with respect to the shares of REIT I Common Stock permitted under the terms of this Agreement has a record date prior to the Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of REIT I Common Stock on the outstanding Class A-1 Preferred Closing Date immediately prior to the Merger Effective Time. In the event that a distribution with respect to the shares of REIT II Common Stock permitted under the terms of this Agreement has a record date prior to the Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of REIT II Common Stock on the Closing Date immediately prior to the Merger Effective Time. REIT I shall coordinate with REIT II the declaration of, and the setting of record dates and payment dates for, dividends on REIT I Common Stock so that holders of REIT I Common Stock (i) do not receive dividends on both REIT I Common Stock and REIT II Common Stock received in the Merger, or, in respect of a single calendar quarter or fail to receive a dividend on either REIT I Common Stock or REIT II Common Stock received in the Merger, or (ii) do not receive both a dividend permitted by the proviso to Section 6.1(b)(iii) on REIT I Common Stock and a dividend permitted by the proviso to Section 6.2(b)(iv) on REIT II Common Stock received in the Merger or fail to receive either a dividend permitted by the proviso to Section 6.1(b)(iii) on REIT I Common Stock or a dividend permitted by the proviso to Section 6.2(b)(iv) on REIT II Common Stock received in the Merger. (b) In the event that either REIT I or REIT II shall declare or pay any dividend or other distribution that is expressly permitted pursuant to the proviso at the end of Section 6.1(b)(iii) or Section 6.2(b)(iv), respectively, it shall notify the other Party at least twenty (20) days prior to the Closing Date, and such other Party shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the declare a dividend per share purchase price payable ($1.10i) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateREIT I, to holders of REIT I Common Stock in an amount per share of REIT I Common Stock equal to the average product of (A) the closing bid prices dividend declared by REIT II with respect to each share of REIT II Common Stock by (B) the Exchange Ratio and (ii) in the case of REIT II, to holders of REIT II Common Stock, in an amount per share of REIT II Common Stock equal to the quotient obtained by dividing (x) the dividend declared by REIT I with respect to each share of REIT I Common Stock by (y) the Exchange Ratio. The record date and time and payment date and time for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day any dividend payable pursuant to day, whether or not earned or declared. Such dividends this Section 7.8(b) shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) prior to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysClosing Date.

Dividends. (a) The holders Holders of the outstanding Class A-1 a particular series of Preferred Stock Shares shall be entitled to receive, when, as and if declared by the Board of Trustees of the Trust, out of funds legally available thereforetherefor, cumulative dividends each consisting of cash at the annual rate Applicable Rate and no more, payable on the respective dates set forth below. Dividends on the shares of 6% per annum each series of Preferred Shares so declared and payable shall be paid in preference to and in priority over any dividends declared and payable on the Common Shares. (i) Cash dividends on shares of each series of Preferred Shares shall accumulate from the Date of Original Issue and shall be payable, when, as and if declared by the Board of Trustees of the per share purchase price ($1.10) Trust, out of funds legally available therefor, commencing on the Initial Dividend Payment Date. Following the Initial Dividend Payment Date for a series of Preferred Shares, dividends on that series of Preferred Shares will be payable, at the option of the Class A-1 Preferred Stock. Such dividends shall be payable in shares Trust, either (i) with respect to any 7-Day Dividend Period and any Short Term Dividend Period of the Company’s Class A-1 Preferred Stock quarterly35 or fewer days, on the fifteenth day next succeeding the last day thereof, or (ii) with respect to any Short Term Dividend Period of Octobermore than 35 days and with respect to any Long Term Dividend Period, January, April monthly on the first Business Day of each calendar month during such Short Term Dividend Period or Long Term Dividend Period and July on the day next succeeding the last day thereof (each of such dates date referred to in clause (i) or (ii) being herein referred to as a “"Normal Dividend Payment Date”) commencing "), except that if such Normal Dividend Payment Date is not a Business Day, then the Dividend Payment Date shall be the first Business Day next succeeding such Normal Dividend Payment Date. Although any particular Dividend Payment Date may not occur on the originally scheduled date because of issuancethe 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 Preferred Shares is scheduled to begin on the same day and end on the same day as a Dividend Period for another series of Preferred Shares, then the last day of such Dividend Period for such other series of Preferred Shares shall be pro-rated 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 first such quarterly period if Board of Trustees of the same is less than 91 (ninety-one) daysTrust shall fix the Dividend Payment Date. All shares However, no Dividend Period of common stock any series of Preferred Shares shall be valued at co-extensive with any Dividend Period of any other series of Preferred Shares unless the Fair Market Value thereofTrust 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 Preferred Shares. As used herein Fair Market Value shall mean The Board of Trustees of the Trust before authorizing a dividend may change a Dividend Payment Date if such change does not adversely affect the contract rights of the Holders of Preferred Shares set forth in the case Declaration of stock Trust or the Bylaws. The Initial Dividend Period, 7-Day Dividend Periods and Special Dividend Periods with respect to a series of Preferred Shares are hereinafter sometimes referred to as "Dividend Periods." Each dividend payment date determined as provided above is hereinafter referred to as a "Dividend Payment Date." (ii) Each dividend shall be paid to the Holders as they appear in the Stock Register as of 12:00 noon, New York City time, on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately Business Day preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing Dividends in arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders as they appear on the Stock Register on a date, not exceeding 15 days prior to the payment date therefor, as may be fixed by the Board of issue, Trustees of the Trust. (i) During the period from and shall accrue from day including the Date of Original Issue to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect but excluding the Initial Dividend Payment Date for a series of any previous quarterly dividend period shall not have been paid onPreferred Shares (the "Initial Dividend Period"), the deficiency shall be fully paid on or declared and set apart Applicable Rate for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders series of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend Preferred Shares shall be the date Initial Dividend Rate. Commencing on the Initial Dividend Payment Date for a series of declaration thereof Preferred Shares, the Applicable Rate on that series for each subsequent dividend period (hereinafter referred to as a "Subsequent Dividend Period"), which Subsequent Dividend Period shall commence on and include a Dividend Payment Date and shall end on and include the time of any distribution by purchase calendar day prior to the next Dividend Payment Date (or redemption of shares last Dividend Payment Date in a Dividend Period if there is more than one Dividend Payment Date), shall be equal to the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided rate per annum that where a negotiable debt security is issued in exchange for shares the time results from implementation of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysAuction Procedures.

Dividends. (a) The holders From and after the first date of issuance of any Preferred Shares (the “Initial Issuance Date”), the Preferred Shares shall commence accruing dividends (“Dividends”) at the Dividend Rate computed on the basis of a 360-day year and twelve 30-day months. Dividends shall be payable in arrears on the first Trading Day of each Fiscal Quarter (each, a “Dividend Date”) with the first Dividend Date being the first Trading Day of the outstanding Class A-1 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 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 (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 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 receivesuch Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, out 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 funds legally available thereforesuch Holder or its designee, cumulative dividends 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 Capitalized Dividend. (c) Prior to the payment of Dividends on a Dividend Date, Dividends on the Preferred Shares shall accrue at the annual rate Dividend Rate and be payable by way of 6% per annum inclusion of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean Dividends in the case Conversion Amount on each Conversion Date in accordance with Section 4(b) or upon any redemption in accordance with Section 9 or upon any required payment upon any Bankruptcy Triggering Event. From and after the occurrence and during the continuance of stock on a given dateany Triggering Event, the average of Dividend Rate in effect with respect to such determination shall automatically be increased to the closing bid prices 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 common stock for failure to pay such Dividends at the ten trading days Default Rate on the applicable Dividend Date)), the adjustment referred to in the preceding sentence shall cease to be effective as of the calendar day immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on following the date of issue, such cure; provided that the Dividends as calculated and unpaid at such increased rate during the continuance of such Triggering Event shall accrue from day continue to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) apply to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant extent relating to the terms days after the occurrence of any employee incentive plan, agreement or arrangement) such Triggering Event through and including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time such cure of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysTriggering Event.

Dividends. (a) The holders of the outstanding Class A-1 Series D-1 Preferred Stock Shares shall be entitled to receive, when and as declared by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative dividends per Series D-1 Preferred Share payable in cash at the annual rate of 6% per annum of applicable Annual Dividend Rate; provided, however, that if any dividend payable on any Dividend Payment Date is not paid in full in cash on such Dividend Payment Date, the per share purchase price ($1.10) of amount payable as dividends on such Dividend Payment Date that is not paid in cash on such Dividend Payment Date shall automatically, without any further action by the Class A-1 Preferred StockCorporation, be added to the Liquidation Preference on the relevant Dividend Payment Date at the Annual Dividend Rate applicable with respect to dividends not paid in cash. Such dividends Each such dividend payable in cash shall be payable in shares arrears to the holders of record of the Company’s Class A-1 Series D-1 Preferred Stock quarterlyShares, as they appear on the fifteenth day stock records of Octoberthe Corporation at the close of business on each record date, January, April and July which shall not be more than 30 days preceding the applicable Dividend Payment Date (each of such dates being a the “Dividend Payment Record Date”) commencing on the date of issuance), and as shall be pro-rated for fixed by the first such quarterly period if the same is less than 91 (ninety-one) daysBoard of Directors. All shares The amount of common stock accrued and unpaid dividends on any Series D-1 Preferred Stock at any date shall be valued the amount of any dividends thereon, calculated at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given applicable Annual Dividend Rate, to and including such date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends , which have not been paid; provided that an amount equal to any dividend that was not paid in cash on any applicable Dividend Payment Date shall be cumulative added to the Liquidation Preference in accordance with this Section 3(a) and such dividend not paid in cash and so that if such dividends in respect of any previous quarterly dividend period 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 shorter or longer than a full 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. Holders of Series D-1 Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of the dividends on the Series D-1 Preferred Shares as herein provided. (c) All dividends paid 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 paid on, the deficiency shall be fully paid on 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 shares before payment on the Corporation makes any distribution (as hereinafter defined) Series D-1 Preferred Shares for the immediately preceding Dividend Period and on the Parity Shares for the immediately preceding dividend period applicable to the holders 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 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 authorized and declared ratably in proportion to the respective amounts of dividends accrued and unpaid on the Series D-1 Preferred Shares and such class or classes or series of Parity Shares. (e) 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 Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” Shares made for purposes of and in this section 5 means the transfer compliance with requirements of cash an employee incentive or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by any subsidiary) for any consideration (or any moneys to be paid to or made available for a sinking fund for the Corporation from employees pursuant to the terms redemption of any employee incentive plan, agreement or arrangementshares of such stock) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether directly or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in indirectly (except by conversion or exercise into or exchange for shares Junior Shares), unless in each case the time of the distribution is the date when the Corporation acquires the shares full accrued and unpaid dividends on all outstanding Series D-1 Preferred Shares shall have been paid in such exchange. The Board of Directors may fix a record date cash and on any other Parity Shares shall have been previously paid for the determination immediately preceding Dividend Period and the immediately preceding dividend period applicable to the Parity Shares. (f) In any case where any Dividend Payment Date shall not be a Business Day, then (notwithstanding any other provision of holders this Certificate of Class A-1 Preferred Stock entitled to receive Designation) payment of a dividend declared thereondividends need not be made on such date, which record 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 be no more than sixty (60) daysaccrue on such amount of dividends for the period from and after such Dividend Payment Date.

Dividends. (a) The holders As part of the outstanding Class A-1 Preferred Stock Acquisition, the boards of 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 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 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 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 Additional Dividend is not conditional upon the Effective Date occurring. Keysight and Spirent have agreed that the Spirent Board may declare and pay the Permitted Dividend and the Additional Dividend without any reduction in the Acquisition Price. If, on 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 Permitted Dividend and/or the Additional Dividend), Keysight reserves the right to reduce the Acquisition Price payable under the terms of the Acquisition for the Spirent Shares by an amount equal to the amount of any such dividend, distribution or other return of capital. In such circumstances, the Spirent Shareholders shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including retain any such transferdividend, purchase distribution, or redemption by a subsidiary other return of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase value declared, made, or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) dayspaid.

Dividends. (a) 3.1. The holders of the outstanding Class A-1 Series D Preferred Stock Shares 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 thereforefor that purpose, cumulative dividends payable in cash at the annual rate of 6% per annum 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 per share purchase price ($1.10) Corporation legally available for the payment of such dividends, and shall be payable monthly, when, as and if authorized and declared, in arrears on Dividend Payment Dates, commencing on the Class A-1 Preferred Stockfirst Dividend Payment Date after the Issue Date. Such dividends Each such dividend shall be payable in shares arrears to the holders of record of the Company’s Class A-1 Series D Preferred Stock quarterlyShares, as they appear on the fifteenth day stock records of Octoberthe Corporation at the close of business on each record date, January, April and July which shall not be more than 30 days preceding the applicable Dividend Payment Date (each of such dates being a the “Dividend Payment Record Date”) commencing on the date of issuance), and as shall be pro-rated fixed by the Board of Directors. Accrued and unpaid dividends for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall any past Dividend Periods may be valued authorized and declared and paid at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateany time, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the 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. Such The amount of accrued and unpaid dividends on any Series D Preferred Share at any date shall accrue on each be the amount of any dividends thereon calculated at the applicable rate to and including such share commencing on the date of issue, and shall accrue from day to daydate, whether or not earned or declared, which have not been paid in cash. 3.2. Such The amount of dividends payable for each full Dividend Period for the Series D Preferred Shares shall be cumulative so that if such computed by dividing the Annual Dividend Rate by twelve. The amount of dividends in respect payable for the initial Dividend Period, or any other period shorter or longer than a full Dividend Period, on the Series D Preferred Shares shall be computed on the basis of any previous quarterly dividend period twelve 30-day months and a 360-day year. Holders of Series 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 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 paid on, the deficiency shall be fully paid on or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for such shares before payment on the Corporation makes any distribution (as hereinafter defined) Series D Preferred Shares for all Dividend Periods prior to the holders 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 Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” Shares made for purposes of and in this section 5 means the transfer compliance with requirements of cash an employee incentive or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by any subsidiary or (ii) a purchase or other acquisition of Common Shares made in connection with the Corporation from employees pursuant 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 terms redemption of any employee incentive plan, agreement or arrangementshares of such stock) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether directly or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in indirectly (except by conversion into or exchange for shares Junior Shares), unless in each case the time of full cumulative dividends on all outstanding Series D Preferred Shares and any other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the distribution is the date when the Corporation acquires the shares in Series D Preferred Shares and all past dividend periods with respect to such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysParity Shares.

Dividends. (a) The holders of Dividends on the outstanding Class A-1 Series E Preferred Stock shall will be entitled to receivepayable semi-annually in arrears, when, as and if authorized by the Board of Directors and declared by the Corporation out of funds legally available thereforefunds, on a non-cumulative dividends basis on the $10,000 per share liquidation preference, at the an annual rate of 6% per annum of equal to 9%. Subject to the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such foregoing, dividends shall will be payable in shares arrears on December 1 and June 1 of the Company’s Class A-1 Preferred Stock quarterlyeach year (each, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) ), commencing with the first such Dividend Payment Date 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 payable to holders of record as they appear on the Corporation’s stock register on the fifteenth day of the month prior to the month in which the relevant Dividend Payment Date occurs. Each period from and including a Dividend Payment Date (or the date of issuance, and shall 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 each Dividend Period will be procomputed on the basis of a 360-rated for the first such quarterly period if the same is less than 91 (ninetyday year consisting of twelve 30-one) daysday months. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock If a scheduled Dividend Payment Date falls on a given dateday that is not a business day, the average of dividend will be paid on the closing bid prices for next business day as if it were paid on the Company’s common stock for the ten trading days immediately preceding the scheduled Dividend Payment Date. Such dividends shall , and no interest or other amount will accrue on each such share commencing the dividend so payable for the period from and after that Dividend Payment Date to the date the dividend is paid. (b) Dividends on the date Series E Preferred Stock will be non-cumulative. If for any reason the Board of issueDirectors does not authorize and the Corporation does not declare full cash dividends on the Series E Preferred Stock for a Dividend Period, and shall accrue from day the Corporation will have no obligation to daypay any dividends for that period, whether or not earned the Board of Directors authorizes and the Corporation declares dividends on the Series E Preferred Stock for any subsequent Dividend Period. The Corporation is not obligated to and will not pay holders of the Series E Preferred Stock any dividend 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 declaredpay or set apart for payment full dividends on any series of preferred stock ranking, as to dividends, equally with or junior to the Series E Preferred Stock unless the Corporation has previously declared and paid or set apart for payment, or the Corporation contemporaneously declares and pays or sets apart for payment, full dividends on the Series E Preferred Stock for the most recently completed Dividend Period. Such When dividends shall are not paid in full on the Series E Preferred Stock and any series of preferred stock ranking equally as to dividends, all dividends upon the Series E Preferred Stock and such equally ranking series will be cumulative so that if such dividends in respect declared and paid pro rata. For purposes of any previous quarterly calculating the pro rata allocation of partial dividend period shall not have been paid onpayments, the deficiency shall 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 fully in arrears on the Series E Preferred Stock. Unless the Corporation has paid on 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), as may be determined by the Board of Directors or a duly authorized committee of the Board of Directors, may be declared and paid on the Corporation’s Common Stock and any other stock ranking equally with or junior to the Series E Preferred Stock from time to time out of any assets legally available for such shares before the Corporation makes any distribution (as hereinafter defined) to payment, and the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Series E Preferred Stock will not be entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysparticipate in those dividends.

Dividends. (a) The holders Holders as of 12:00 noon, New York City time, on the outstanding Class A-1 Preferred Stock applicable Dividend Payment Date, shall be entitled to receive, when, as and if declared by the Board of Trustees, out of funds legally available thereforetherefor, cumulative dividends dividends, at the annual rate Applicable Dividend Rate. Dividends on the shares of 6% per annum 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 per share purchase price ($1.10) alternative minimum tax provisions of the Class A-1 Preferred StockCode. Such 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 in on the applicable Dividend Payment Date to the Holder or Holders of such shares of the Company’s Class A-1 Preferred Stock quarterlyRP as set forth in paragraph 3(a). Dividends on any share of RP in arrears with respect to any past Dividend Payment Date may be declared and paid at any time, on the fifteenth day of October, January, April and July (each of such dates being a “without reference to any regular Dividend Payment Date”) commencing on , to the Holder of such share as of a date not exceeding five Business Days preceding the date of issuance, and payment thereof as may be fixed by the Board of Trustees. Any dividend payment made on any share of RP shall be pro-rated for first credited against the first such quarterly period if the same is less than 91 dividends accumulated but unpaid (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such ) 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 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 numerator 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 that obtained by $100,000. (g) No later than by 12:00 noon, New York City time, on each Dividend Payment Date, the Trust shall deposit in same- day funds with the Paying Agent the full amount of any dividend declared and payable on such Dividend Payment Date on any share of RP. (h) The Applicable Dividend Rate for each Dividend Period commencing during a Non-Payment Period shall be 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 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 each Dividend Period for shares of RP commencing after the first day of, and during, 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 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 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. 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 given at least seven days prior to such Tender Date to the 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 Period or if the Trust fails to maintain either the RP Basic Maintenance Amount or the 1940 Act RP Asset Coverage and such failure is not cured; (iv) if such Special Dividend Period contains 365 or more days, the shares of RP subject to such Special Dividend Period shall have an aggregate liquidation preference (exclusive of accumulated but unpaid dividends and premium, if any) of at least $30,000,000 or such greater or lesser amount as may be specified by the Board of Trustees; (v) in respect of any previous quarterly dividend period 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 (vi) in respect of any Special Dividend Period of 365 or more days, the Board of Trustees, after consultation with the Remarketing Agents, may establish Specific Redemption Provisions. On or before 5:00 p.m., New York City time, on the third Business Day prior to the designation of a 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 days to be specified as a Special Dividend Period and the 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 Board 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 the Dividend Period in respect of any share of RP which otherwise would have been paid onsubject to such Special Dividend 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) 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 deficiency Trust will, not later than 270 days after the end of the Trust's fiscal year for which such 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 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 fully paid on or declared and set apart for such shares before the Corporation makes any distribution calculated (as hereinafter definedi) without consideration being given to the holders time value of Common Stockmoney; (ii) assuming that no Qualified Investor is subject to the alternative minimum tax with respect to dividends received from the Trust; and (iii) assuming that each Nonqualifying Distribution and Gross-Up Dividend (to the extent that such Gross-up Dividend is not exempt from Federal income tax) would be taxable in the hands of each Qualified Investor at the maximum marginal corporate Federal income tax rate in effect during the fiscal year in question. Accrued but unpaid 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 shall not bear interest. “Distribution” in this section 5 means on the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend RP shall be binding and conclusive for all purposes of determining the date amount of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.Gross-up Dividends requ

Dividends. (a) The holders Beginning on the applicable Issue Date, the Holders of the outstanding Class A-1 shares of Convertible Preferred Stock being issued on such Issue Date shall be entitled to receive, when, as, and if declared by the Special Committee, out of funds legally available thereforetherefor, cumulative cash dividends on each share of Convertible Preferred Stock, at the annual rate (the "Dividend Rate") of 610 3/8% per annum multiplied by the then-effective liquidation preference per share of the per share purchase price ($1.10) of the Class A-1 SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION OF KEVCO, INC.-PAGE 6 204 Convertible Preferred Stock. Such Additional dividends, at the Dividend Rate, shall accrue in respect of, and compound on, any dividends which are in arrears. All dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to daycumulative, whether or not earned or declared. Such dividends , from the Issue Date and shall compound to the extent not paid on the next succeeding Dividend Payment Date, and shall be cumulative so that if payable quarterly in arrears on each Dividend Payment Date, commencing on the first Dividend Payment Date after the applicable Issue Date. At the option of the corporation as determined by the Special Committee, any dividend payable on any Dividend Payment Date may be declared and paid wholly or partially "in kind" in lieu of cash, by issuing whole shares of Series B Nonvoting Preferred Stock on such dividends Dividend Payment Date with an aggregate liquidation preference in respect an amount equal to the aggregate cash dividend cumulated and unpaid to such date (or any portion thereof) with cash paid in lieu of issuing fractional shares. The amount of any previous quarterly dividend period shall dividends payable on any Dividend Payment Date not have been declared or paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of full in cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption issuance of shares of Series B Nonvoting Preferred Stock shall be added to the Corporation for cash or property (except for an exchange of shares liquidation preference of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any Convertible Preferred Stock on such transfer, purchase or redemption by a subsidiary of the Corporationdate. The time of any distribution by way of Each dividend shall be payable to Holders of record as they appear on the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time stock books of the distribution is corporation on the date when Dividend Record Date immediately preceding the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysrelated Dividend Payment Date.

Dividends. (a) The In the event that a distribution with respect to the shares of REIT III Common Stock permitted under the terms of this Agreement has a record date prior to the REIT Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of REIT III Common Stock on the outstanding Class A-1 Preferred Closing Date immediately prior to the REIT Merger Effective Time. In the event that a distribution with respect to the shares of REIT II Common Stock permitted under the terms of this Agreement has a record date prior to the REIT Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of REIT II Common Stock on the Closing Date immediately prior to the REIT Merger Effective Time. After the signing of this Agreement and before the REIT Merger Effective Time, REIT III shall coordinate with REIT II with respect to the declaration of, and the setting of record dates and payment dates for dividends on REIT III Common Stock so that holders of REIT III Common Stock do not receive both a dividend permitted by the proviso to Section 6.1(b)(iii) on REIT III Common Stock and a dividend permitted by the proviso to Section 6.2(b)(iii) on REIT II Common Stock received in the REIT Merger or fail to receive either a dividend permitted by the proviso to Section 6.1(b)(iii) on REIT III Common Stock or a dividend permitted by the proviso to Section 6.2(b)(iii) on REIT II Common Stock received in the REIT Merger. (b) In the event that REIT III shall declare or pay any dividend or other distribution that is expressly permitted pursuant to the proviso at the end of Section 6.1(b)(iii), it shall notify REIT II at least 20 days prior to the Closing Date, and REIT II shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the declare a dividend per share purchase price ($1.10) payable to holders of the Class A-1 Preferred REIT II Common Stock. Such dividends shall be payable , in shares an amount per share of the Company’s Class A-1 Preferred REIT II Common Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) equal to the holders quotient obtained by dividing (x) the dividend declared by REIT III with respect to each share of REIT III Common StockStock by (y) the Exchange Ratio. Accrued but unpaid dividends In the event that REIT II shall not bear interest. “Distribution” in this section 5 means the transfer of cash declare or property without consideration, whether by way of pay any dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees other distribution that is expressly permitted pursuant to the terms proviso at the end of any employee incentive planSection 6.2(b)(iii), agreement or arrangementit shall notify REIT III at least 20 days prior to the Closing Date, and REIT III shall be entitled to declare a dividend per share payable to holders of REIT III Common Stock, in an amount per share of REIT III Common Stock equal to the quotient obtained by multiplying (x) including any such transfer, purchase or redemption the dividend declared by a subsidiary REIT II with respect to each share of REIT II Common Stock by (y) the CorporationExchange Ratio. The record date and time of and payment date and time for any distribution by way of dividend payable pursuant to this Section 7.8(b) shall be prior to the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysClosing Date.

Dividends. (a) Each of Parent and the Company shall declare a dividend to their respective stockholders, the record and payment date for which shall be the close of business on the last Business Day prior to the Effective Time, in each case, subject to funds being legally available therefor. The per share dividend amount payable by the Company shall be an amount equal to (i) the Company’s most recent monthly dividend, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Effective Time occurs, and divided by the actual number of days in the calendar month in which such dividend is declared, plus (ii) if necessary to enable the Company to make aggregate dividend distributions during its final taxable period equal to the Minimum Distribution Dividend, an additional amount (the “Company Additional Dividend Amount”) necessary so that the aggregate dividend payable is equal to the Minimum Distribution Dividend, plus (iii) the Parent Additional Dividend Amount, if any, divided by the quotient of (A) one (1) divided by (B) the Exchange Ratio. The per share dividend amount payable by Parent shall be an amount equal to (i) Parent’s most recent quarterly dividend, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Effective Time occurs, and divided by the actual number of days in the calendar quarter in which such dividend is declared, plus (ii) the Company Additional Dividend Amount, if any, divided by the Exchange Ratio, plus (iii) if necessary to enable Parent to make aggregate dividend distributions during the taxable year that includes the Closing Date equal to the Minimum Distribution Dividend, an additional amount (the “Parent Additional Dividend Amount”) necessary so that the aggregate dividend payable is equal to the Minimum Distribution Dividend. If the Company determines it is necessary to declare the Additional Dividend Amount, the Company shall notify Parent of such determination at least ten (10) days prior to the Company Stockholder Meeting. (b) Subject to Section 6.18(a), Parent shall not make, declare or set aside any dividend or other distribution to its stockholders other than the authorization and payment of (i) distributions at its stated dividend or distribution rates with respect to the Parent Preferred Stock and (ii) regular quarterly cash distributions in respect of Parent Common Stock at an annual rate not in excess of $2.90 per share (with such increases in such annual rate as may be approved by Parent’s board of directors from time to time). (c) In the event that a distribution or dividend with respect to the shares of Company Common Stock permitted under the terms of this Agreement has (i) a record date prior to the Effective Time and (ii) has not been paid as of the Effective Time, the holders of the outstanding Class A-1 Preferred shares of Company Common Stock shall be entitled to receive, out of funds legally available therefore, cumulative dividends receive such distribution or dividend from the Company at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for time such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees are exchanged pursuant to the terms Article III of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysthis Agreement.

Dividends. 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 new preferred stock, $.01 par value, of the Missouri Predecessor Corporation (athe "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 outstanding Class A-1 shares of New Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors out of funds legally available therefore, cumulative dividends at the annual rate of 69.25% per annum of (the per share purchase price ($1.10"NP Dividend Rate") of the Class A-1 Preferred Stock. Such dividends which shall accrue daily and shall be payable in shares computed on the basis of the Company’s Class A-1 Preferred Stock quarterlya 365 day year or a 366 day year, as applicable, on the fifteenth day of OctoberNP Base Amount (which, Januaryexcept as provided in paragraph 2(e) below, April 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 such dates being a “"NP Dividend Payment Date”"), commencing with the first NP Dividend Payment Date following the date of issuance (the "Issuance Date") commencing of shares of New Preferred Stock, payable as set forth hereinafter. If the NP Dividend Payment Date is not a Business Day (as defined herein), then such dividend shall be payable on the next succeeding Business Day. The dividend payable on the first NP Dividend Payment Date following an Issuance Date with respect to any issued and outstanding share of New Preferred Stock shall be the pro rata amount of the NP Dividend Rate based upon the number of days in the period from an Issuance Date to the first NP Dividend Payment Date following such Issuance Date (the "Dividend Period"). Dividends on the New Preferred Stock shall be paid to the holders of record at the close of business on the date specified by the Board of issuanceDirectors of the Corporation at the time such dividend is declared; provided, and that such date shall not be pro-rated for the first such quarterly period if the same is more than 60 days nor less than 91 (ninety-one) days. All shares of common stock shall be valued at 10 days prior to the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the respective NP Dividend Payment Date. Such dividends Dividends shall accrue on each such share commencing on the date of issue, be fully cumulative and shall accrue from day to day, (whether or not earned declared and whether or declarednot 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. Such 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 cumulative so that if such 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 respect of any previous quarterly dividend period 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 have been paid on, the deficiency shall be fully paid declare or pay on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) 's Common Stock any dividend, whether in cash, property or the purchase or redemption of shares of 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 cash any Common Stock or property set aside any assets for such purpose (except for an exchange of shares of other than solely in additional Common Stock), nor shall the Corporation purchase, redeem or shares acquired by the Corporation from employees pursuant to the terms of otherwise acquire any employee incentive planCommon Stock or any warrants, agreement rights or arrangement) including options exercisable for any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued Common Stock (other than in exchange for shares additional Common Stock). f. Subject to the time foregoing provisions of this paragraph 2, the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date 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 may purchase, redeem or otherwise acquire any Common Stock or any warrants, rights or options exercisable for any Common Stock and set aside assets for such purpose, and the determination of holders of Class A-1 the shares of the New Preferred Stock shall not be entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysshare therein.

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) The 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 the outstanding Class A-1 Preferred Stock USI’s board of 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 USI 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 receiveUSI and USI may redeem, out repurchase, acquire or retire an amount of funds legally available thereforeits capital stock or warrants or options therefor, cumulative dividends or declare and pay any dividend or make any distribution on its capital stock (collectively, “Distributions”), either (a) if at the annual rate time of 6% per annum of making such Distribution the per share purchase price Leverage Ratio ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Companycalculated on a pro forma basis based on USI’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April most recent financial statements delivered pursuant to Section 6.1 and July (each of such dates being a “Dividend Payment Date”) commencing on giving effect to any Permitted Acquisition since the date of issuancesuch financial statements, such Distribution and shall be pro-rated for any Indebtedness incurred in connection therewith, all in accordance with the first such quarterly period if the same terms of this Agreement) is less than 91 to 3.00 to 1.00, on an unlimited basis, and (ninety-oneb) days. All shares of common stock shall be valued if at the Fair Market Value thereof. As used herein Fair Market Value shall mean in time of making such Distribution the case of stock Leverage Ratio (calculated on a given date, the average of the closing bid prices for the Companypro forma basis based on USI’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on most recent financial statements delivered pursuant to Section 6.1 and giving effect to any Permitted Acquisition since the date of issuesuch financial statements, such Distribution and shall accrue from day to dayany Indebtedness incurred in connection therewith, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends all in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to accordance with the terms of any employee incentive plan, agreement this Agreement) is greater than or arrangement) including any such transfer, purchase or redemption by a subsidiary of equal to 3.00 to 1.00 in an amount not greater than the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysMaximum Payment Amount.

Dividends. (a) The When and as declared by the Corporation’s Board of Directors and to the extent permitted under the General Corporation Law of Delaware, the Corporation shall be obligated to pay preferential dividends to the holders of the outstanding Class A-1 Series A Preferred Stock prior and in preference to Common Stock as provided in this Section II.1. Dividends on each share of the Series A Preferred Stock (a “Series A Share”) shall be entitled to receive, out of funds legally available therefore, cumulative dividends accrue at the annual rate of 68% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock annum, compounded quarterly, on the fifteenth day sum of October, January, April the Series A Liquidation Preference thereof plus all accumulated and July (each unpaid dividends thereon from and including the Date of Issuance of such dates being a “Dividend Payment Date”Series A Share to and including the first to occur of (i) commencing on the date on which the Series A Liquidation Preference of issuancesuch Series A Share, plus all accrued and shall be pro-rated for unpaid dividends thereon, is paid to the first holder thereof in connection with the liquidation of the Corporation, (ii) the date on which such quarterly period if the same Series A Share is less than 91 (ninety-one) days. All converted into shares of common stock shall be valued at Common Stock hereunder or (iii) the Fair Market Value thereof. As used herein Fair Market Value shall mean in date on which such Series A Share is otherwise acquired by the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment DateCorporation. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned they have been declared and whether or declared. Such not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends, and such dividends shall be cumulative so such that if such all accrued and unpaid dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and with funds irrevocably set apart for payment before any dividends, distributions, redemptions or other payments may be made with respect to any Common Stock. To the extent not paid on March 31, June 30, September 30, and December 31 of each year, with respect to each Series A Share (the “Dividend Reference Dates”), all dividends which have accrued on each Series A Share outstanding during the three-month period (or other period in the case of the initial Dividend Reference Date) ending upon each such shares before Dividend Reference Date shall be accumulated and shall remain accumulated dividends with respect to such Share until paid to the holder thereof. Except as otherwise provided herein, if at any time the Corporation makes pays less than the total amount of dividends then accrued with respect to the Series A Preferred, such payment shall be distributed, pro rata among the holders of Series A Preferred based upon the preferences set forth in Section II.1(a) above and based upon the aggregate accrued but unpaid dividends on the Shares held by each such holder. In the event that the Corporation declares or pays any distribution dividends upon the Common Stock (as hereinafter definedwhether payable in cash, securities or other property) other than dividends payable solely in shares of Common Stock, the Corporation shall also declare and pay to the holders of the Series A Preferred Stock at the same time that it declares and pays such dividends to the holders of the Common Stock. Accrued but unpaid , the dividends shall not bear interest. “Distribution” in this section 5 means which would have been declared and paid with respect to the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares Common Stock issuable upon conversion of the Corporation) or the purchase or redemption of shares Series A Preferred Stock had all of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant outstanding Series A Preferred Stock been converted immediately prior to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for such dividend, or if no record date is fixed, the determination date as of which the record holders of Class A-1 Preferred Common Stock entitled to receive payment of a dividend declared thereon, which record date shall such dividends are to be no more than sixty (60) daysdetermined.

Dividends. (a) The holders of It is agreed that (i) the outstanding Class A-1 Preferred Stock Parties shall be entitled take such actions as are necessary to receive, out of funds legally available therefore, cumulative dividends at ensure that the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect timing of any previous regular quarterly dividend period shall not have been paid onto common stockholders or shareholders by either Company or Parent prior to the Closing will be coordinated so that, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to 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 calendar quarter prior to the Closing Date and (ii) the 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 Company and the common shareholders of Parent receive the same number of such dividends prior to the 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. Accrued but unpaid dividends shall not bear interest. “Distribution” Notwithstanding anything to the contrary contained herein, in this section 5 means the transfer of cash event Company declares a Permitted REIT Dividend other than a Permitted REIT Dividend necessitated by action or property without consideration, whether actions requested by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees Parent pursuant to Section 7.17, the terms Exchange Ratio will be ratably adjusted to the extent necessary or appropriate to reflect fully the effect of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of change resulting from the CorporationPermitted REIT Dividend. The time of record date and payment date for any distribution Permitted REIT Dividend payable by way of dividend Company or any Company Subsidiary shall be the close of business on the last Business Day prior to the Closing Date. (c) If Parent or any Parent Subsidiary, in consultation with Company, determines that it is necessary to declare a Permitted REIT Dividend, Parent shall notify Company at least twenty (20) days prior to the anticipated Closing Date. Notwithstanding anything to the contrary contained herein, in the event Parent declares a Permitted REIT Dividend, 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 of declaration thereof and the time of payment date for any distribution Permitted REIT Dividend payable by purchase Parent or redemption of shares any Parent Subsidiary shall be the day cash or property is transferred by close of business on the Corporation, whether or not pursuant last Business Day prior to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysClosing Date.

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Dividends that become payable on Restricted Shares -------------------- shall be entitled 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 (each, a "RS Dividend Date"), the Company shall be deemed to receivehave reinvested any cash dividend otherwise then payable on the Restricted Shares in a number of phantom shares of 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, out of funds legally available therefore, cumulative dividends the phantom shares then credited to the Dividend Escrow Account shall be deemed to receive a dividend at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends then applicable dividend rate, which shall be 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 shares 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 Company’s Class A-1 Preferred Stock quarterlysame vesting and other restrictions as the Restricted Shares with respect to which dividends became payable, on and with any fractional share being treated as a cash dividend that is subject to the fifteenth day of October, January, April escrow and July (each of such dates being a “Dividend Payment Date”) commencing on reinvestment procedures in this Section 4. Any other non-cash dividends credited with respect to Restricted Shares shall be subject to the date of issuanceescrow and reinvestment procedures in this Section 4, and shall be pro-rated valued for purposes of this Section 4 at the first such quarterly period if fair market value thereof as of the same is less than 91 relevant RS Dividend Date, as determined by the Compensation Committee of the Board of Directors (ninety-onethe "Committee") daysin its sole discretion. All On the Vesting Date, the Company shall deliver out of escrow to the Grantee that whole number of shares of common stock shall be valued at Common Stock equal to the Fair Market Value thereof. As used herein Fair Market Value shall mean in whole number of phantom shares then credited to the case of stock on a given date, Dividend Escrow Account as the average result of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, deemed investment and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends reinvestment in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in phantom shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant dividends attributable to the terms Restricted Shares. The value of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend fractional share shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued paid in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) dayscash.

Dividends. (a) The From and after the date of this Agreement until the earlier of the Company Merger Effective Time and termination of this Agreement pursuant to Section 8.1, neither the Company nor PECO shall authorize, make, declare or set aside any dividend or other distribution to its stockholders without the prior written consent of the Company (in the case of PECO) or PECO (in the case of the Company); provided, however, that the written consent of the other Party shall not be required for the authorization and payment by the Company of dividends in the Ordinary Course of Business (“Company Permitted Dividend”) or by PECO of dividends in the Ordinary Course of Business (a “PECO Permitted Dividend”, and together with the Company Permitted Dividends, each a “Permitted Dividend”), as applicable. In the event that (i) a Company Permitted Dividend has (A) a record date prior to the Company Merger Effective Time and (B) has not been paid as of immediately prior to the Company Merger Effective Time (regardless of the declared date for the payment thereof), the holders of Company Shares shall be entitled to receive such distribution from the outstanding Class A-1 Preferred Company immediately prior to the time such shares are exchanged pursuant to Article II or (ii) a PECO Permitted Dividend has (A) a record date prior to the Company Merger Effective Time and (B) has not been paid as of immediately prior to the Company Merger Effective Time (regardless of the declared date for the payment thereof), the holders of shares of PECO Common Stock shall be entitled to receivereceive such distribution from PECO in connection with the Closing. Notwithstanding the foregoing and any other restriction on dividends and other distributions in this Agreement, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares each of the Company’s Class A-1 Preferred Stock quarterly, on any Company Subsidiary, PECO, and any PECO Subsidiary shall be permitted (without the fifteenth day consent of Octoberthe other Party) to declare and make dividends and distributions, Januaryincluding under Sections 858 or 860 of the Code, April and July (each prior to the Closing if the making of such dates being a “Dividend Payment Date”) commencing on dividends or distributions prior to the date of issuance, and shall be pro-rated Closing is necessary for the first such quarterly period if Company or PECO, as applicable, to maintain its status as a REIT under the same Code or applicable state Law and avoid the imposition of any entity level income or excise Tax under the Code or applicable state Law. If the Company or PECO, as applicable, determines that it is less than 91 necessary to declare a dividend or distribution (ninety-one) days. All shares of common stock whether a Company Permitted Dividend, a PECO Permitted Dividend or otherwise), it shall be valued at notify the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for PECO or the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends , as applicable, as soon as reasonably practicable prior to such declaration. (b) The Parties shall accrue on each take such share commencing on the date of issue, and shall accrue from day actions as are necessary to day, whether or not earned or declared. Such dividends shall be cumulative so ensure that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Company Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means Stock and Company Partnership Units receive the transfer of cash or property without considerationCompany Permitted Dividend for a particular period prior to the Closing Date, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption holders of shares of PECO Common Stock and PECO OP Units receive the Corporation PECO Permitted Dividend for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant a particular period prior to the terms Closing Date, then the holders of any employee incentive planCompany Common Stock and Company Partnership Units or the holders of PECO Common Stock and PECO OP Units, agreement or arrangement) including any such transferas the case may be, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment the applicable Permitted Dividend for such period as necessary to result in the holders of Company Common Stock and Company Partnership Units and the holders of PECO Common Stock and PECO OP Units receiving the applicable Permitted Dividend (or any portion thereof) covering the same periods prior to the Closing Date. The timing of any such dividends will be coordinated so that, if either the holders of Company Common Stock and Company Partnership Units or the holders of PECO Common Stock and PECO OP Units receive a dividend declared thereondistribution for a particular period prior to the Closing Date, which record date then the holders of Company Common Stock and Company Partnership Units and the holders of PECO Common Stock and PECO OP Units, respectively, shall be no more than sixty (60) daysreceive a distribution for such period prior to the Closing Date.

Dividends. (a) The holders of the then outstanding Class A-1 Series B Preferred Stock Shares shall be entitled to receive, when and as declared by the Board of Trustees out of any funds legally available thereforetherefor, cumulative dividends at the annual rate of 6% per annum of the $22.8125 per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be per year, payable in shares equal amounts of the Company’s Class A-1 Preferred Stock quarterly, $5.703125 per share quarterly in cash on the fifteenth day day, or if not a Business Day, the next succeeding Business Day, of October, January, April April, July and July October in each year, beginning January 15, 1996 (each such day being hereinafter called a "Quarterly Dividend Date" and each period ending on a Quarterly Dividend Date being hereinafter called a "Dividend Period"), to shareholders of record at the close of business on such dates being date as shall be fixed by the Board of Trustees at the time of declaration of the dividend (the "Record Date"), which shall be not less than 10 nor more than 30 days preceding the Quarterly Dividend Date. The amount of any dividend payable for the initial Dividend Period and for any other Dividend Period shorter than a “full Dividend Payment Date”) commencing Period shall be prorated and computed on the basis of a 360-day year of twelve 30-day months. Dividends on each share of Series B Preferred Shares shall accrue and be cumulative from and including the date of issuanceoriginal issue thereof, and whether or not (i) dividends on such shares are earned or declared or (ii) on any Quarterly Dividend Date there shall be pro-rated funds legally available for the first such quarterly period if payment of dividends. Dividends paid on the same is Series B Preferred Shares in an amount less than 91 (ninety-one) days. All the total amount of such dividends at the time accrued and payable on such shares of common stock shall be valued allocated pro rata on a per share basis among all such shares at the Fair Market Value thereoftime outstanding. As used herein Fair Market Value The amount of any dividends accrued on any Series B Preferred Shares at any Quarterly Dividend Date shall mean in be the case amount of stock on a given dateany unpaid dividends accumulated thereon, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the to and including such Quarterly Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such , and the amount of dividends accrued on any shares of Series B Preferred Shares at any date other than a Quarterly Dividend Date shall be cumulative so that if such dividends in respect equal to the sum of the amount of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means accumulated thereon, to and including the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporationlast preceding Quarterly Dividend Date, whether or not pursuant to a contract of earned or declared, plus an earlier date; provided that where a negotiable debt security is issued in exchange for shares amount calculated on the time basis of the distribution is annual dividend rate of $22.8125 for the period after such last preceding Quarterly Dividend Date to and including the date when as of which the Corporation acquires calculation is made based on a 360-day year of twelve 30- day months. Except as provided in these Articles, the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Series B Preferred Stock Shares shall not be entitled to receive payment participate in the earnings or assets of a dividend declared thereon, which record date shall be no more than sixty (60) daysthe Trust.

Dividends. Each of Parent and the Company shall declare a dividend to their respective stockholders, the record and payment date for which shall be the close of business on the last Business Day prior to the Effective Time, in each case, subject to funds being legally available therefor. The per share dividend amount payable by the Company shall be an amount equal to (ai) the Company’s most recent monthly dividend, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Effective Time occurs, and divided by the actual number of days in the calendar month in which such dividend is declared, plus (ii) if necessary to enable the Company to make aggregate dividend distributions during its final taxable period equal to the Minimum Distribution Dividend, an additional amount (the “Company Additional Dividend Amount”) necessary so that the aggregate dividend payable is equal to the Minimum Distribution Dividend, plus (iii) the Parent Additional Dividend Amount, if any, divided by the quotient of (A) one (1) divided by (B) the Exchange Ratio. The per share dividend amount payable by Parent shall be an amount equal to (i) Parent’s most recent monthly dividend, multiplied by the number of days elapsed since the last dividend record date through and including the day prior to the day on which the Effective Time occurs, and divided by the actual number of days in the calendar month in which such dividend is declared, plus (ii) the Company Additional Dividend Amount, if any, divided by the Exchange Ratio, plus (iii) if necessary to enable Parent to make aggregate dividend distributions during the taxable year that includes the Closing Date equal to the Minimum Distribution Dividend, an additional amount (the “Parent Additional Dividend Amount”) necessary so that the aggregate dividend payable is equal to the Minimum Distribution Dividend. If the Company determines it is necessary to declare the Additional Dividend Amount, the Company shall notify Parent of such determination at least ten (10) days prior to the Company Stockholder Meeting. If Parent determines it is necessary to declare the Parent Additional Dividend Amount, the Parent shall notify the Company of such determination at least ten (10) days prior to the Company Stockholder Meeting. In the event that a distribution with respect to shares of Company Common Stock permitted under the terms of this Agreement has (i) a record date prior to the Effective Time and (ii) has not been paid as of the Effective Time, the holders of the outstanding Class A-1 Preferred shares of Company Common Stock shall be entitled to receive, out of funds legally available therefore, cumulative dividends receive such distribution from the Company at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for time such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees are exchanged pursuant to the terms Article III of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.this Agreement

Dividends. (a) The holders of the shares of outstanding Class A-1 Redeemable Convertible Preferred Stock shall be entitled to receiveentitled, when, as and if declared by the Board of Directors, out of funds legally lawfully available therefore, therefor to receive cumulative dividends at the annual rate of 6% per annum of the 15% per share purchase price on the Liquidation Preference (equivalent to $1.1015.00 per annum per share), subject to adjustment as provided herein, payable quarterly in arrears (the “DIVIDEND RATE”). The Dividend Rate shall decrease to a rate per annum of 12% per share on the Liquidation Preference (equivalent to $12 per annum per share) if the Closing Price of the Class A-1 Preferred StockCommon Stock equals or exceeds 150% of the then-effective Conversion Price for at least 180 consecutive Trading Days. Such dividends Dividends payable for each full Dividend Period will be computed by dividing the Dividend Rate by four and shall be payable in shares of arrears on each Dividend Payment Date for the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of Dividend Period ending immediately prior to such dates being a “Dividend Payment Date”) commencing , to the holders of record of Redeemable Convertible Preferred Stock at the close of business on the date of issuance, and shall be pro-rated for the first Record Date applicable to such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each 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 the Company legally available for the payment of such share commencing on the date of issue, dividends) and shall accrue from on a day-to-day to daybasis, whether or not earned or declared, from and after the Issue Date. Such dividends Dividends payable for any partial Dividend Period or 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 cumulative so that if such computed on the basis of days elapsed over a 360-day year consisting of twelve 30-day months. Accumulations of dividends in respect on shares of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends Redeemable Convertible Preferred Stock shall not bear interest. “Distribution” in this section 5 means The initial dividend rate on the transfer 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 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 property without considerationCommon Stock, if permitted under Section 3A, has been set apart for the 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, 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 any dividend payment or payments on the Redeemable Convertible Preferred Stock which may be in arrears. (d) If (i) within 45 days after a demand to file the Shelf Registration Statement has been made in accordance with the Investor Rights Agreement, the Shelf Registration Statement has not been filed with the Commission, (ii) within 135 days after a demand to file the Shelf Registration Statement has been made in accordance with the Investor Rights Agreement, the Shelf Registration Statement has not been declared effective by way 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 dividend Transfer Restricted Securities during the period that any Transfer Restricted Securities (other than Transfer Restricted Securities held or otherwise beneficially owned by Affiliates of the Company, other than the Initial Holder) remain outstanding (except each such event referred to in clauses (i), (ii) and (iii), a dividend “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 filing of a post-effective amendment to the Shelf Registration Statement to incorporate annual audited financial information with respect to the Company where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus, (B) the 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 the CorporationRedeemable Convertible Preferred Stock acquired by any existing Holder or beneficial owner of the Redeemable Convertible Preferred Stock or (C) other material events with respect to 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 case of clauses (i)(A) or the purchase or redemption (C), if such Registration Default referred to in clause (iii) of shares Section 3(d) occurs for a continuous period in excess of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan30 days, agreement or arrangementadditional dividends as described in Section 3(d) including any such transfershall accrue in accordance therewith from, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be and including, the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporationsuch Registration Default occurs until, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is but excluding, the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysRegistration Default is cured.

Dividends. (a) The holders Holders of the outstanding Class A-1 Preferred Stock MRP Shares shall be entitled to receivereceive quarterly cumulative cash dividends, when, as and if authorized by the Board of Directors and declared by the Company, out of funds legally available thereforetherefor, cumulative dividends at the annual rate of 6% per annum of equal to the per share purchase price Applicable Rate ($1.10or the Default Rate), and no more, payable on the respective dates determined as set forth in paragraph (b) of this Section 2. Dividends on Outstanding MRP Shares shall accumulate from the Class A-1 Preferred Stock. Such dividends Original Issue Date. (i) Dividends shall be payable in shares quarterly when, as and if authorized by the Board of Directors and declared by the Company’s Class A-1 Preferred Stock quarterly, Company beginning on the fifteenth day of October, January, April and July (each of such dates being a “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 shall pay an aggregate amount of federal funds or similar same-day funds, equal to the dividends to be paid to all Holders of such shares on such Dividend Payment Date 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 paid on the Dividend Payment Date therefor to the Holders as their names appear on the share ledger or share records of the Company 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 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. No interest will be payable in respect of any 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”) commencing 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 equal to one of the ratings set forth in 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 date MRP Shares. If, notwithstanding the foregoing requirements of issuancethis Section 2(c)(i), and 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 pro-rated for equal to the first such quarterly period 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 same is less than 91 (ninety-one) days. All shares Company either fails to pay directly in accordance with Section 14 of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean Securities Purchase Agreement or, in the case of stock 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 dividend payable on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding 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”). Such 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 accrue 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 share commencing 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 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 dividend or distribution paid in shares of, or options, warrants or rights to subscribe for or purchase, Common Shares or other shares of 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 issuethe transaction have been declared and paid, and shall accrue from day (3) the Company has redeemed the full number of MRP Shares required to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends redeemed by any provision for mandatory redemption contained in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution Section 3(a) (as hereinafter defined) without regard to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares provisions of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysSpecial Proviso).

Dividends. (a) The In the event that a distribution with respect to the shares of REIT I Common Stock or REIT I Preferred Stock permitted under the terms of this Agreement has a record date prior to the REIT Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of REIT I Common Stock or REIT II Preferred Stock, as applicable, on the Closing Date immediately prior to the REIT Merger Effective Time. In the event that a distribution with respect to the shares of REIT II Common Stock permitted under the terms of this Agreement has a record date prior to the REIT Merger Effective Time and has not been paid prior to the Closing Date, such distribution shall be paid to the holders of such shares of REIT II Common Stock on the Closing Date immediately prior to the REIT Merger Effective Time. After the signing of this Agreement and before the REIT Merger Effective Time, REIT I shall coordinate with REIT II with respect to the declaration of, and the setting of record dates and payment dates for dividends on REIT I Common Stock so that (i) holders of REIT I Common Stock do not receive dividends on both REIT I Common Stock and REIT II Common Stock received in the REIT Merger, or (ii) the holders of the outstanding Class A-1 Preferred REIT II OP Units do not receive distributions on the REIT II OP Units and the REIT I OP Units received in the Partnership Merger, as applicable, in respect of a single distribution period or fail to receive a dividend on either REIT I Common Stock or REIT II Common Stock received in the REIT Merger, or REIT II OP Units and REIT I OP Units received in the Partnership Merger, as applicable, in respect of a single distribution period or (iii) do not receive both a dividend permitted by the proviso to Section 6.1(b)(iii) on REIT I Common Stock and a dividend on REIT II Common Stock received in the REIT Merger or fail to receive either a dividend permitted by the proviso 76 (b) In the event that REIT I shall declare or pay any dividend or other distribution that is expressly permitted pursuant to the proviso at the end of Section 6.1(b)(iii), it shall notify REIT II at least twenty (20) days prior to the Closing Date, and REIT II shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the declare a dividend per share purchase price ($1.10) payable to holders of the Class A-1 Preferred Stock. Such dividends shall be payable REIT II Common Stock and REIT II OP Units, in shares an amount per share of the Company’s Class A-1 Preferred REIT II Common Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) per REIT II OP Unit equal to the holders quotient obtained by dividing (x) the dividend declared by REIT I with respect to each share of REIT I Common StockStock by (y) the Exchange Ratio. Accrued but unpaid dividends In the event that REIT II shall not bear interest. “Distribution” in this section 5 means the transfer of cash declare or property without consideration, whether by way of pay any dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees other distribution that is expressly permitted pursuant to the terms proviso at the end of any employee incentive planSection 6.2(b)(iii), agreement it shall notify REIT I at least twenty (20) days prior to the Closing Date, and REIT I shall be entitled to declare a dividend per share payable to holders of REIT I Common Stock and REIT I OP Units, in an amount per share of REIT I Common Stock or arrangementper REIT I OP Unit equal to the quotient obtained by multiplying (x) including any such transfer, purchase or redemption the dividend declared by a subsidiary REIT II with respect to each share of REIT II Common Stock by (y) the CorporationExchange Ratio. The record date and time of and payment date and time for any distribution by way of dividend payable pursuant to this Section 7.8(b) shall be prior to the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysClosing Date.

Dividends. (a) The holders Holders as of 12:00 noon, New York City time, on the outstanding Class A-1 Preferred Stock applicable Dividend Payment Date, shall be entitled to receive, when, as and if declared by the Board of Trustees, out of funds legally available thereforetherefor, cumulative dividends dividends, at the annual rate Applicable Dividend Rate. Dividends on the shares of 6% per annum 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 per share purchase price ($1.10) alternative minimum tax provisions of the Class A-1 Preferred StockCode. Such 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 in on the applicable Dividend Payment Date to the Holder or Holders of such shares of the Company’s Class A-1 Preferred Stock quarterlyRP as set forth in paragraph 3(a). Dividends on any share of RP in arrears with respect to any past Dividend Payment Date may be declared and paid at any time, on the fifteenth day of October, January, April and July (each of such dates being a “without reference to any regular Dividend Payment Date”) commencing on , to the Holder of such share as of a date not exceeding five Business Days preceding the date of issuance, and payment thereof as may be fixed by the Board of Trustees. Any dividend payment made on any share of RP shall be pro-rated for first credited against the first such quarterly period if the same is less than 91 dividends accumulated but unpaid (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such ) 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 so 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 if such results from implementation of 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 previous quarterly dividend period shall not have been paid on, the deficiency Dividend Period shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired computed by the Corporation from employees pursuant Trust by multiplying the Applicable Dividend Rate in effect with respect to the terms of any employee incentive plan, agreement or arrangement) including any dividends payable on such transfer, purchase or redemption share on such Dividend Payment Date by a subsidiary fraction the numerator of the Corporation. The time of any distribution by way of dividend which shall be the date number of declaration thereof 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 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 Trust shall deposit in same-day funds with the Paying Agent the full amount of any distribution by purchase dividend declared and payable on such Dividend Payment Date on any share of RP. (h) The Applicable Dividend Rate for each Dividend Period commencing during a Non-Payment Period shall be equal to the Non-Payment Period Rate; any share of RP for which an Optional Dividend Period or a Special Dividend Period would otherwise have commenced on the first 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 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 shares 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 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 cash Dividend Period or property is transferred by (b) the Corporation, whether or not pursuant Remarketing Agents are unable to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares remarket in such exchange. The 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 Directors may fix Trustees has designated the next succeeding Dividend Period with respect to such share as a record date for 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 determination 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 holders RP tendered (or deemed tendered) to them at a price of Class A-1 Preferred Stock entitled to receive payment $100,000 per share, then the next succeeding Dividend Period in respect of a dividend declared thereon, which record date such share shall be no more than sixty (60) days.a 7-day Dividend Period, and the Applicable Dividend Rate

Dividends. (a) The holders of the outstanding Class A-1 shares of Series A Preferred Stock shall be entitled to receivereceive cumulative dividends, out of funds legally available thereforetherefor, cumulative dividends at the annual a rate of 6% nine percent (9%) per annum annum, before any dividend or distribution in cash or other property on common stock or any class or series of stock of the per share purchase price 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. ($1.10b) of the Class A-1 Dividends on Series A Preferred Stock. Such dividends shall be payable in shares on March 31, June 30, September 30 and December 31 of the Company’s Class A-1 Preferred Stock quarterlyeach year through December 31, on the fifteenth day of October, January, April and July 2013 (each of such dates date being hereinafter individually a “Dividend Payment Date”), except that if such date is a Saturday, Sunday or legal holiday then such dividend shall be payable on the first immediately preceding calendar day which is not a Saturday, Sunday or legal holiday, to holders of record as they appear on the books of the Corporation on such respective dates, not exceeding sixty (60) commencing days preceding such Dividend Payment Date, as may be determined by the Board of Directors in advance of the payment of each particular dividend. Dividends in arrears may be declared and paid at any time, without reference to any 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 less than a full quarterly period shall be computed and prorated on the basis of a 360-day year of twelve 30-day months. (c) If the Corporation is unable to pay a dividend on a Dividend Payment Date, the dividend shall be cumulative and shall accrue from and after the date of issuanceoriginal 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 respect of any dividend period unless there shall also be or have been declared and paid on Series A Preferred accrued, unpaid dividends for all quarterly periods coinciding with or ending before such quarterly period, ratably in proportion to the respective annual dividend rates fixed therefor. (e) Dividends on Series A Preferred shall be propaid 50% in cash and 50% in shares of fully-rated for paid and nonassessable common stock of the first such quarterly period 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 same common stock is less than 91 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 traded in the over-the-counter market, the closing bid price, in each case averaged over a period of ninety (ninety90) consecutive trading days prior to the date as of which “market price” is being determined, (ii) if the common stock is not traded on an exchange or the NASDAQ Stock Market, or otherwise traded in the over-onethe-counter market, the higher of (A) days. All shares the book value thereof as determined by any firm of 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 fair value thereof determined in good faith by the Board of Directors of the Corporation as of a 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 valued paid in cash at the Fair Market Value thereof. As used herein Fair Market Value shall mean dividend rate set forth in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysSection 3(a).

Dividends. Authorize, declare or pay, directly or indirectly, any Dividends, except that the following shall be permitted: (a) The 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 the outstanding Class A-1 Preferred Stock shall be entitled to receiveHoldings held by officers, out of funds legally available thereforedirectors or employees or former officers, cumulative dividends at the annual rate of 6% per annum of the per share purchase price directors or employees ($1.10or their transferees, estates or beneficiaries under their estates) of 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 Class A-1 Preferred Stock. Such dividends aggregate cash consideration paid for all such redemptions and payments shall be payable not exceed, in shares of the Company’s Class A-1 Preferred Stock quarterlyany fiscal year, on the fifteenth day of October, January, April $50,000,000 (and July (each up to 50% of such dates being a “Dividend Payment Date”$50,000,000 not used in any fiscal year may be carried forward to the next succeeding (but no other) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 fiscal year); (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter definedA) to the holders extent actually used by Holdings or Intermediate Holdco to pay such Taxes, costs and expenses, payments by the Borrower to or on behalf of Common Stock. Accrued but unpaid dividends 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 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 bear interest. “Distribution” be included in the calculation of Consolidated Fixed Charges for purposes of this section 5 means clause (III); (e) Permitted Tax Distributions and Employee Payment Distributions; (f) the transfer 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 cash such person; (g) to the extent ultimately contributed to the Borrower, 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 property without considerationindirect parent companies, whether by way in each case, to members of dividend management, directors or otherwise consultants of Holdings, the Borrower or any of their Subsidiaries; (except a dividend in shares of the Corporationh) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees 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 Transaction Documents, including (i) a conveyance, transfer or assignment of the North Yard and the West Yard to Sunoco or any employee incentive plannominee of Sunoco and (ii) the sale of the North 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, agreement or arrangement(i) including the net proceeds received by the Borrower from the sale of securities in such IPO and (ii) dividends from Available Cash on and following such consummation, provided that, in the case of this clause (ii), after giving effect to any such transferdividend, purchase Liquidity shall equal or redemption by a subsidiary exceed the greater of (x) an amount equal to 15% of the Corporation. The time then current Borrowing Base and (y) $10,000,000; (l) Dividends taking the form of any distribution by way issuance of dividend Qualified Capital Stock in the Borrower; (m) prior to, but in contemplation of an IPO, 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 Dividends), shall be replaced with an equal amount of IPO proceeds (which portion of the date IPO proceeds shall not, for the avoidance of declaration thereof and the time of any distribution by purchase or redemption of shares shall doubt, be the day cash or property is transferred by the Corporation, whether or not distributed pursuant to clause (k)(i) above); and (n) a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time distribution of the distribution is Equity Interests of PESA to an Affiliate Transferee, so long as PESA does not own any material portion of the date when Refinery, provided that, notwithstanding anything to the Corporation acquires contrary herein, Dividends permitted pursuant to any of the shares foregoing clauses shall not be included in such exchange. The Board the calculation of Directors may fix a record date for total amount of Dividends consummated pursuant to any other of the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysforegoing clauses.

Dividends. (a) The holders of the outstanding Class A-1 shares of Series A Preferred Stock shall be entitled to receivereceive with respect to each share of Series A Preferred Stock, when, as and if declared by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative dividends at the annual a rate of 6% per annum of the per share purchase price equal to two percent ($1.102%) of the Class A-1 then effective Liquidation Preference per share, payable in (A) cash, (B) additional shares of Series A Preferred Stock. Such Stock (ADDITIONAL SHARES) or (C) any combination of the foregoing in accordance with the terms of this paragraph 4; provided, however, that dividends shall 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 the Company’s Class A-1 Series A Preferred Stock quarterly, on the fifteenth day of October, January, April remain authorized and July (each of such dates being a “Dividend Payment Date”) commencing on the date of available for issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so from the Issue Date regardless of when actually issued (except that if 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 for the payment of such dividends and whether or not dividends are declared, and shall be payable on April 21 of each year (unless such day is not a Business Day, in which event such dividends shall be payable on the next succeeding Business Day) (each such date being a DIVIDEND PAYMENT DATE and each such annual period being a DIVIDEND PERIOD). Each such dividend shall be payable to the holders of record of shares of the Series A Preferred Stock as 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, to holders of record on such record date, not more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. Dividends shall accumulate to the extent that they are not paid on the Dividend 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 previous quarterly dividend period payment or payments on the Series A Preferred Stock that may be in arrears; provided that if dividends are not paid in full on any Dividend Payment Date, the amount so payable, to the extent not paid, shall not be added to the then effective Liquidation Preference on such Dividend Payment Date. (c) So long as any shares of the Series A Preferred Stock are outstanding, no dividend, except as described in the next succeeding sentence, shall be 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 each case full cumulative dividends have been or contemporaneously are declared and paid on, the deficiency shall be fully paid on or declared and consideration sufficient for the payment thereof set apart for such shares before payment on the Corporation makes any distribution (as hereinafter defined) Series A Preferred Stock for all Dividend Periods terminating on or prior to the holders date of Common Stockpayment of the dividend on such class or series of Parity Securities or the redemption, purchase or other acquisition thereof. Accrued but unpaid When dividends shall are not bear interest. “Distribution” paid in this section 5 means the transfer of cash full or property without considerationconsideration sufficient for such payment is not set apart, whether by way of dividend or otherwise (except a dividend in as aforesaid, all dividends declared upon shares of the CorporationSeries A Preferred Stock and all dividends declared upon any other class or series of Parity Securities shall be declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Series A Preferred Stock and accumulated and unpaid on such Parity Securities. (d) So long as any shares of the Series A Preferred Stock are outstanding, no dividends (other than dividends or the distributions paid in shares of, or to effectuate a stock split on, or options, warrants or rights to subscribe for or purchase shares of, Junior Securities) shall be declared or paid or set apart for payment or other distribution declared or made upon Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired (other than a redemption, purchase or redemption other acquisition of shares of the Corporation Common Stock made for cash purposes of an employee incentive or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by 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 Corporation from employees pursuant to the terms redemption of any employee incentive plan, agreement or arrangement) including shares of any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred stock) by the Corporation, whether directly or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in indirectly (except by conversion into or exchange for Junior Securities), unless in each case (i) the full cumulative dividends on all outstanding shares the time of the distribution is Series A Preferred Stock and accrued and unpaid dividends on any other Parity Securities shall have been paid or set apart for payment for all past Dividend Periods with respect to the date when the Corporation acquires the shares in Series A Preferred Stock and all past dividend periods with respect to such exchange. The Board of Directors may fix a record date Parity Securities and (ii) sufficient consideration shall have been paid or set apart for the determination payment of holders of Class A-1 the dividend for the current Dividend Period with respect to the Series A Preferred Stock entitled and the current dividend period with respect to receive payment such Parity Securities. (e) The number of a Additional Shares to be issued as dividends in lieu of cash will equal the quotient of (X) the cash amount of the dividend declared thereon, which record date shall be no more than sixty that otherwise would have been payable in cash and (60Y) daysthe then effective Liquidation Preference per share.

Dividends. (a) The holders record owner of the outstanding Class A-1 Preferred Stock each Voting Trust Certificate shall be entitled to receivereceive his pro rata share of any dividends paid or distributed by the Company upon the Shares represented by the Voting Trust Certificates and all other corporate distributions made by the Company in respect of such Voting Shares; provided, out however, that, if any such dividend or distribution includes shares of funds legally available thereforecapital stock of the Company with voting rights, cumulative dividends 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 annual rate date so fixed shall exclusively be entitled to participate in the payment or distribution. Upon receipt by the Voting Trustee of 6% per annum any dividend or other distribution in respect of any Shares held by the per share purchase price ($1.10) 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 Class A-1 Preferred StockCompany if the foregoing provisions hereof had been observed. Such dividends 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 payable in reclassified and any shares of capital stock issued in exchange or substitution for the Company’s Class A-1 Preferred Stock quarterlyShares then on deposit hereunder shall, on if they are non-voting shares, be distributed in accordance with the fifteenth day provisions of Octoberthis Agreement directly to the record owners of outstanding Voting Trust Certificates, January, April and July (each issued in respect of such dates being a “Dividend Payment Date”) commencing on Shares; or, if they are voting shares, they shall become subject to the date terms and conditions of issuancethis Agreement as if such voting shares had been originally deposited hereunder, and shall be pro-rated for deposited with the first such quarterly period if Voting Trustee, and the same is less than 91 (ninety-one) days. All shares owner of common stock outstanding Voting Trust Certificates shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment new Voting Trust Certificates representing such newly deposited shares of a dividend declared thereon, which record date shall be no more than sixty (60) dayscapital stock with voting rights.

Dividends. (a) The holders of shares of the outstanding Class A-1 Series A Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds of the Company legally available thereforetherefor, cumulative cash dividends at the annual rate described in Section 3(b). To the extent declared by the Board of 6% per annum Directors, dividends will be payable quarterly on the 15th day of the per share purchase price ($1.10) first month of each calendar quarter in San Francisco, California, or if not a Business Day in San Francisco, California, the Class A-1 Preferred Stock. Such dividends shall be payable next succeeding Business Day in shares San Francisco, California, and in the case of any accrued but unpaid dividends, at such additional times, if any, as determined by the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day Board of October, January, April and July Directors (each of such dates being 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 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. No less than five (5) commencing 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 the amount of the dividend payment for each of the Series A-1 Cumulative Redeemable Preferred Stock and the Series A-2 Cumulative Redeemable Preferred Stock. Dividends on the Series A-1 Cumulative Redeemable Preferred Stock will accrue and be cumulative from and including the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average issuance of the closing bid prices for Series A-1 Preferred Stock (the Company’s common stock for “Series A-1 Original Issue Date”) and Dividends on the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall Series A-2 Cumulative Redeemable Preferred Stock will accrue on each such share commencing on and be cumulative from and including the date of issueissuance of the Series A-2 Preferred Stock (the “Series A-2 Original Issue Date”). The term “Original Issue Date” when used with respect to the Series A-1 Cumulative Redeemable Preferred stock shall mean the Series A-1 Original Issue Date, and when used with respect to the Series A-2 Cumulative Redeemable Preferred Stock shall accrue from day to day, whether or not earned or declaredmean the Series A-2 Original Issue Date. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid onHowever, the deficiency shall Board of Directors will not be fully paid on or declared required to declare dividends, and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall the Series A Preferred Stock will not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant be entitled to the terms require payment of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysdividend.

Dividends. (a) The Subject to Section E below, the holders of shares of Convertible Preferred Stock, in preference to the outstanding Class A-1 Preferred Stock holders of any Junior Securities other than Common Stock, shall be entitled to receive, receive mandatory cash dividends on an As-Converted-to-Common-Stock-Basis in an amount equal to the cash dividends declared by the Board on the Common Stock out of funds of the Corporation legally available thereforetherefor, but only as, when, and if so declared. The Convertible Preferred Stock will not accrue dividends until and unless the date on which the holders of Capital Stock of the Corporation do not approve the Merger at the first meeting of stockholders upon which such matter is submitted for a vote after the date hereof or otherwise on the 60th day following the closing of the Exchange Offer if the Merger has not been consummated by such date (the “Dividend Accrual Date”). Beginning on and following such Dividend Accrual Date and ending on the date upon which the Merger becomes effective, the Convertible Preferred Stock shall accrue cumulative dividends on its Liquidation Preference at the an annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends 20%, which shall be payable in shares added to the Liquidation Preference of the Company’s Class A-1 such Convertible Preferred Stock quarterly, on the fifteenth last day of Octobereach calendar quarter (i.e., JanuaryMarch 31, April June 30, September 30 and July December 31) (each of such dates 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 Liquidation Preference pursuant to this Section D being a referred to herein as “Dividend Payment DateAccrued Dividends”) commencing on the date of issuance, and ). All dividend accruals pursuant to this Section D shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock based on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date365-day year. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period Any Accrued Dividends shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stockbear interest. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of may be declared and paid at any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daystime.

Dividends. (a) The holders holder of the outstanding Class A-1 Preferred Stock each voting trust certificate shall be entitled to receivereceive payments equal to the cash dividends, out if any, received by the Trustee prior to the termination of funds legally available therefore, cumulative dividends at this Agreement upon the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of Company Stock beneficially represented by each such voting trust certificate, such payment to be made by the Company’s Class A-1 Preferred Stock quarterly, on Trustee to the fifteenth day of October, January, April and July (each person or persons entitled thereto within three business days after receipt of such dates being a “Dividend Payment Date”cash dividend by the Trustee unless and except to the extent that the Trustee has given the Company the instructions contemplated by Section 7(d) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) dayshereof. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends If any dividend in respect of any previous quarterly dividend period shall not have been paid onthe Company Stock deposited with the Trustee is paid, in whole or in part, in capital stock of the Company having general voting powers, in a transaction nontaxable to the recipient, the deficiency Trustee shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without considerationlikewise hold, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant subject to the terms of any employee incentive planthis Agreement, agreement or arrangement) including any the capital stock so received by the Trustee on account of such transferdividend (which shall thereupon also be deemed to be "Company Stock"), purchase or redemption 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 a subsidiary the Trustee as such dividend with respect to the Company 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 Corporation. The time Trustee at the close of any distribution business on day fixed by way the Company for the taking of dividend shall be 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 registered as such at the close of business on the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred so fixed by the CorporationTrustee, whether or not pursuant but in all events subject to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time applicable law. (c) The transfer books of the distribution is Trustee may be closed temporarily by the Trustee for a period not exceeding 20 days preceding the date when fixed for the Corporation acquires payment or distribution of dividends or the shares distribution of assets or rights, or any other time in such exchangethe discretion of the Trustee. The Board In lieu of Directors 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 Class A-1 Preferred Stock voting trust certificates entitled to receive such payment or distribution, and the holders of a dividend declared thereon, which voting trust certificates of record at the close of business on such date shall exclusively be no more than sixty entitled to participate in such payments or distribution, but in all events subject to applicable law. (60d) daysIn lieu of receiving cash dividends upon Company Stock and paying the same to the holders 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 until revoked by the Trustee, all liability of the Trustee with respect to such dividends shall cease. The Trustee may at any time revoke such instructions and by written notice to the Company direct it to make dividend payments to the Trustee.

Dividends. (a) The holders Holders of the shares of outstanding Class A-1 Series I Preferred Stock shall be entitled to receive, out of funds of the Corporation legally available thereforetherefor, cumulative dividends at the annual rate of 68.0% per annum of share on the per share purchase price Original Purchase Price ($1.10) of the Class A-1 Preferred Stock“Dividend Rate”). Such dividends Dividends shall be payable declared by the Corporation and paid in shares of the Company’s Class A-1 Preferred Stock quarterly, arrears on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”Date (as defined below) commencing on the date of issuanceMarch 15, and shall be pro-rated 2009 for the first Dividend Period ending immediately prior to such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing be payable to the record holders of Series I Preferred Stock on the record date on which such dividends are declared (notwithstanding any transfer or other disposition after such record date and prior to the Dividend Payment Date). If a Dividend Payment Date is not a business day, payment will be made on the next succeeding business day, without any interest or other payment in lieu of issueinterest accruing with respect to this delay. Subject to Section 3(e) below, and all such dividends shall accrue from day the most recent date as to daywhich dividends shall have been paid or, if no dividends have been paid, from the original date of issuance of the Series I Preferred Stock (the “Issue Date”), whether or not earned or declaredin any Dividend Period(s) there shall have been funds of the Corporation legally available for the payment of such dividends. Such Notwithstanding the foregoing, such dividends shall be cumulative so that if such dividends in respect of paid only to the extent assets are legally available therefor on the Dividend Payment Date and any previous quarterly dividend period shall amounts for which assets are not have been paid on, the deficiency legally available shall be fully paid promptly as assets become legally available therefore. Any partial payment of dividends otherwise required to be paid on or declared and set apart for such shares before a Dividend Payment Date will be made pro rata among the Corporation makes any distribution (as hereinafter defined) to the applicable record holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Series I Preferred Stock entitled to receive payment based on their respective holdings of a dividend declared thereonsuch shares. (i) The term “Dividend Payment Date” shall mean September 15th and March 15th of each year, which record date shall be no more than sixty (60) daysbeginning with March 15, 2009.

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Holders shall be entitled to receivereceive with respect to each share of Preferred Stock, at the Company’s option, either (i) out of any funds or assets legally available thereforefor that purpose, cumulative dividends dividends, whether or not declared or paid, payable in cash (a “Cash Dividend”) at the annual rate of 66.5% per annum of the Accreted Value per share purchase price in effect immediately after the prior Dividend Payment Date ($1.10or the 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 Class A-1 Preferred StockAccreted Value in effect immediately after the prior Dividend Payment Date (or the Issue Date in respect of the first Dividend Payment Date) (the “Accretion Rate”), in each case of clause (i) and (ii), based on a 360-day year of twelve 30-day months. Such dividends 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 shares of arrears on each Dividend Payment Date for the Company’s Class A-1 Preferred Stock quarterly, quarterly period ending on the fifteenth day of October, January, April and July (each of Dividend Record Date immediately prior to such dates being a “Dividend Payment Date”) commencing , 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 date of issuance, and shall be pro-rated for the first Business Day following such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such 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 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 such share commencing on the date of issue, and shall accrue from day to dayDividend Payment Date), whether or not earned or declared. Such dividends shall be cumulative so , from and after the Issue Date or the most recent Dividend Payment Date, as applicable; provided, that if such dividends the Company pays Cash Dividends in respect of any previous 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 period 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 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 paid on, the deficiency shall be fully paid on or contemporaneously are declared and paid, or are declared and a sum of cash sufficient for the payment thereof is set apart for such shares before payment, on the Corporation makes Series A Preferred Stock, the Preferred Stock and any distribution (as hereinafter defined) Parity Stock for all dividend payment periods terminating on or prior to the date of such declaration, payment, redemption, purchase or acquisition. Notwithstanding the foregoing, if full dividends have not been paid on the Series A Preferred Stock, the Preferred Stock and any Parity Stock, dividends may be 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 all cases bear to each other the same ratio that accumulated and unpaid dividends per share on the shares of Series A Preferred Stock, the Preferred Stock 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 respect to any share of Common Stock to the same extent as if such Holder had converted its Preferred Stock and held such shares of Common Stock on the record date for such 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 Common Stock. Accrued but unpaid dividends Except as provided in this Section 3(d) and Section 3(a), Holders shall not bear interest. “Distribution” be entitled to any dividends or other distributions on the Preferred Stock, whether payable in cash, property or stock. (e) Notwithstanding anything in this section 5 means Certificate of Designation to the transfer contrary, upon the occurrence and during the continuance of any Trigger Event, the Dividend Rate, whether payable in cash or property without considerationby PIK Dividend, whether shall increase by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days3.0% per annum.

Dividends. (a) 3.1. The holders of the outstanding Class A-1 Series E Preferred Stock Shares 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 thereforefor that purpose, cumulative dividends payable in cash at the annual rate of 6% per annum Annual Dividend Rate. All dividends shall be cumulative from the date such Series E Preferred Shares are issued (but shall include accrued but unpaid dividends on the Series D Preferred Shares that have been exchanged for the Series E Preferred Shares), whether or not in any Dividend Period or Periods there shall be funds of the per share purchase price ($1.10) Corporation legally available for the payment of such dividends, and shall be payable monthly, when, as and if authorized and declared, in arrears on Dividend Payment Dates, commencing on the Class A-1 first Dividend Payment Date after the date such Series E Preferred StockShares are issued. Such dividends Each such dividend shall be payable in shares arrears to the holders of record of the Company’s Class A-1 Series E Preferred Stock quarterlyShares, as they appear on the fifteenth day stock records of Octoberthe Corporation at the close of business on each record date, January, April and July which shall not be more than 30 days preceding the applicable Dividend Payment Date (each of such dates being a the “Dividend Payment Record Date”) commencing on the date of issuance), and as shall be pro-rated fixed by the Board of Directors. Accrued and unpaid dividends for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall any past Dividend Periods may be valued authorized and declared and paid at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateany time, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the 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. Such The amount of accrued and unpaid dividends on any Series E Preferred Share at any date shall accrue on each be the amount of any dividends thereon calculated at the applicable rate to and including such share commencing on the date of issue, and shall accrue from day to daydate, whether or not earned or declared, which have not been paid in cash. 3.2. Such The amount of dividends payable for each full Dividend Period for the Series E Preferred Shares shall be cumulative so that if such computed by dividing the Annual Dividend Rate by twelve. The amount of dividends in respect payable for the initial Dividend Period, or any other period shorter or longer than a full Dividend Period, on the Series E Preferred Shares shall be computed on the basis of any previous quarterly dividend period twelve 30-day months and a 360-day year. Holders of Series E Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative dividends, as herein provided, on the Series E Preferred Shares, except for any other amounts provided herein. 3.3. So long as any Series E Preferred Shares are outstanding, no dividends, except as described in the immediately following sentence, shall be authorized and declared and paid or set apart for payment on any series or class or classes of Parity Shares for any period unless full cumulative dividends have been paid on, the deficiency shall be fully paid on or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for such shares before payment on the Corporation makes any distribution (as hereinafter defined) Series E Preferred Shares for all Dividend Periods prior to the holders dividend payment date for such class or classes or series of Parity Shares. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends authorized and declared upon Series E Preferred Shares and all dividends authorized and declared upon any other series or class or classes of Parity Shares shall be authorized and declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Series E Preferred Shares and such class or classes or series of Parity Shares. 3.4. So long as any Series E Preferred Shares are outstanding, no dividends shall be authorized and declared and paid or set apart for payment or other distribution authorized and declared and made upon Junior Shares (other than dividends or other distributions (i) paid in respect of the Common Shares issued pursuant to the Securities Purchase Agreement or stock issued pursuant to the Contingent Value Rights Agreement or (ii) paid solely in Junior Shares, or options, warrants or rights to subscribe for or purchase Junior Shares), nor shall any Junior Shares be redeemed, purchased or otherwise acquired (other than (i) a redemption, purchase or other acquisition of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” Shares made for purposes of and in this section 5 means the transfer compliance with requirements of cash an employee incentive or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by any subsidiary or (ii) a purchase or other acquisition of Common Shares made in connection with the Corporation from employees pursuant 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 terms redemption of any employee incentive plan, agreement or arrangementshares of such stock) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether directly or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in indirectly (except by conversion into or exchange for shares Junior Shares), unless in each case the time of full cumulative dividends on all outstanding Series E Preferred Shares and any other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the distribution is the date when the Corporation acquires the shares in Series E Preferred Shares and all past dividend periods with respect to such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysParity Shares.

Dividends. (a) The holders Holders of the outstanding Class A-1 shares of Series A Preferred Stock shall be entitled to receivecumulative 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 funds the assets of the Company legally available thereforetherefor, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends and shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, semiannually commencing on the fifteenth 180th day of October, January, April and July following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each of such dates 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 date of issuancepreceding Dividend Payment Date (or, and shall be pro-rated for the first such quarterly period if the same there is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateno preceding Dividend Payment Date, the average of Issue Date) and ending on the closing bid prices for day immediately prior to the Company’s common stock for the ten trading days immediately preceding the next Dividend Payment Date. Such 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 on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends payable in respect of shares initially issued to any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared Holder who is contractually obligated to appear and set apart for such shares before the Corporation makes vote in favor of any distribution (as hereinafter defined) to the holders proposal made at a meeting of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares stockholders of the CorporationCompany in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the purchase or redemption Affiliates of either) fails so to appear and vote in favor. Any shares of issued to such Holders shall bear the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysStockholder Approval Legend.

Dividends. (a) The holders of the outstanding Class A-1 Series C Preferred Stock Shares 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 thereforefor that purpose, cumulative dividends payable in cash at the annual a per share rate of 6% per annum equal to 5.81% of the per share purchase price Face Amount ($1.10) of the Class A-1 Preferred Stock“Annual Dividend Rate”). Such dividends shall be payable cumulative from the Issue Date, whether or not in shares any Dividend Period or Periods there shall be funds of the Company’s Class A-1 Preferred Stock quarterly, on Corporation legally available for the fifteenth day of October, January, April and July (each payment of such dates being a “Dividend Payment Date”) commencing on the date of issuancedividends, and shall be pro-rated for payable monthly, 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 quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock dividend shall be valued payable in arrears to the holders of record of the Series C Preferred Shares, as they appear on the stock records of the Corporation at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case close of stock business on a given each record date, the average of the closing bid prices for the Company’s common stock for the ten trading which shall not be more than 30 days immediately preceding the applicable Dividend Payment Date (the “Dividend Payment Record Date”), as shall be 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 more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. Such The amount of accrued and unpaid dividends on any Series C Preferred Share at any date shall accrue on each be the amount of any dividends thereon calculated at the applicable rate to and including such share commencing on the date of issue, and shall accrue from day to daydate, whether or not earned or declared. Such , which have not been paid in cash. (b) The amount of dividends payable for each full Dividend Period for the Series C Preferred Shares shall be cumulative so that if such computed by dividing the Annual Dividend Rate by twelve. The amount of dividends in respect payable for the initial Dividend Period, or any other period shorter or longer than a full Dividend Period, on the Series C Preferred Shares shall be computed on the basis of any previous quarterly dividend period twelve 30-day months and a 360-day year. Holders of Series C 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 Series C Preferred Shares, except for any other amounts provided herein. (c) So long as any Series C 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 paid on, the deficiency shall be fully paid on or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for such shares before payment on the Corporation makes any distribution (as hereinafter defined) Series C Preferred Shares for all Dividend Periods prior to the holders 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 C 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 C Preferred Shares and such class or classes or series of Parity Shares. (d) So long as any Series C 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 Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” Shares made for purposes of and in this section 5 means the transfer compliance with requirements of cash an employee incentive or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by any subsidiary or (ii) a purchase or other acquisition of Common Shares made in connection with the Corporation from employees pursuant 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 terms redemption of any employee incentive plan, agreement or arrangementshares of such stock) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether directly or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in indirectly (except by conversion into or exchange for shares Junior Shares), unless in each case the time of full cumulative dividends on all outstanding Series C Preferred Shares and any other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the distribution is the date when the Corporation acquires the shares in Series C Preferred Shares and all past dividend periods with respect to such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysParity Shares.

Dividends. (a) The Corporation shall pay to the holders of the outstanding Class A-1 Series E Preferred Stock, a mandatory quarterly dividend at an annual rate of 11.25% of the Stated Amount (as such term is defined in Section 4 below) payable solely in the form of Common Stock of the Corporation, subject only to the Corporation being able to lawfully pay such dividend in accordance with applicable law. Dividends on the Series E Preferred Stock shall be entitled commence to receiveaccrue and are cumulative (whether or not declared) from the date on which such shares shall have been issued until the date on which such shares are redeemed, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stockconverted or exchanged. Such dividends shall be mandatorily payable as stated above, in shares Common Stock of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July Corporation at its Current Market Price (each of such dates being a “Dividend Payment Date”as defined below) commencing on the date of issuancepayment, in equal quarterly payments in arrears on the last day of each fiscal quarter of the Corporation of each year or such earlier date on which a share of Series E Preferred Stock is redeemed, converted or exchanged (each such date being referred to herein as a "Dividend Payment Date"), commencing December 31, 1996, or if not paid on such Dividend Payment Date by reason of a prohibition against such payment pursuant to the first sentence of this Subsection (a) (a "Payment Prohibition"), then promptly when and to the extent no such Payment Prohibition continues to apply; provided, however, that the dividend payable in respect of the quarter ended on the first dividend payment date after the date on which such shares shall have been issued and in respect of any other quarter in which some or all of the Series E Preferred Stock was not outstanding for the entire quarter shall be pro-rated for reduced in proportion to the first portion of such quarterly period in which such shares were not outstanding; and provided further, however, that if and to the same is less than 91 (ninety-one) days. All shares of common stock shall be valued extent that, at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given any dividend payment date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends Corporation shall accrue on each such share commencing fail to make any quarterly dividend payment on the date of issueSeries E Preferred Stock (which failure shall only be permitted to the extent a Payment Prohibition applies), and such unpaid dividend amount shall accrue from day to day, whether or not earned or declaredaccumulate without interest until paid. Such dividends shall be cumulative paid to the Series E Preferred Stock stockholders of record on the last business day immediately preceding the date of payment. All partial dividends paid with respect to shares of the Series E Preferred Stock shall be paid pro rata to the holders entitled thereto in proportion to the total amount of dividends to which each is entitled. The "Current Market Price" of the Corporation's Common Stock on any given day shall be: (i) if the Common Stock is listed or admitted to unlisted trading privileges on any exchange registered with the Securities and Exchange Commission as a "national securities exchange" under the Securities Exchange Act of 1934 (a "National Securities Exchange"), the arithmetic average of the last sales price of the shares of Common Stock on the National Securities Exchange in or nearest the City of New York on which the shares of Common Stock shall be listed or admitted to unlisted trading privileges (or the quoted closing bid if there be no sales on such National Securities Exchange) on the ten most recently completed trading days prior to such day; or (ii) if the Common Stock is not so that listed or admitted, the arithmetic average of the closing sales price of a share of Common Stock as quoted in The Nasdaq Stock Market on the ten most recently completed trading days prior to the day in question; or (iii) if such the Common Stock is not so quoted, the arithmetic average of the mean between the high and low bid prices of a share of Common Stock in the over-the-counter market on the ten most recently completed trading days prior to the day in question as reported by National Quotation Bureau Incorporated or a similar organization. (b) So long as any shares of the Series E Preferred Stock are outstanding, unless all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series E Preferred Stock outstanding shall have been paid in full, the Corporation shall not: (i) pay or declare any dividends, or make any other distributions, on any shares of stock ranking junior to the Series E Preferred Stock in respect of dividends or distribution of assets upon any previous quarterly dividend period shall not have been paid onliquidation, the deficiency shall be fully paid on dissolution or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders winding up of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether voluntary or not pursuant involuntary (a "Liquidation"); (ii) pay or declare any dividends, or make any other distributions, on any shares of stock ranking on a parity to a contract the Series E Preferred Stock in respect of an earlier datedividends or distribution of assets upon Liquidation, except dividends paid ratably on the Series E Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; or (iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior to the Series E Preferred Stock in respect of dividends or distribution of assets upon Liquidation, provided that where a negotiable debt security is issued the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares the time of any stock of the Corporation raking junior to the Series E Preferred Stock in respect of dividends or distribution is of assets upon Liquidation. Except as otherwise provided in this Subsection (b), the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix declare and the Corporation may pay or set apart for payment dividends and other distributions on the common stock (the "Common Stock") and the preferred stock (the "Preferred Stock") of the Corporation ranking junior to or on a parity with the Series E Preferred Stock in respect of dividends or distributions of assets upon Liquidation, and may redeem, purchase, retire or otherwise acquire for consideration shares of Common Stock or Preferred Stock ranking junior to or on a parity with the Series E Preferred Stock in respect of dividends or distributions of assets upon Liquidation, and the holders of the Series E Preferred Stock shall not be entitled to share therein. (c) In the event the Corporation, not being in violation of the provisions of the preceding paragraph, shall distribute to all holders of its Common Stock (x) evidences of indebtedness or assets and property other than cash, (y) capital stock of the Corporation other than Common Stock, or (z) rights to purchase only (i) Common Stock (except in a Rights Offering as defined in Subsection 5(b) below) or (ii) units consisting of shares of Common Stock and warrants to purchase shares of Common Stock (all of such distributions collectively hereinafter called "Shared Distributions"), then the holders of the Series E Preferred Stock shall participate in such Shared Distributions as if immediately prior to the record date for the determination of holders of Class A-1 Preferred Stock stockholders entitled to receive payment such Shared Distribution such holders had converted their shares of a dividend declared thereon, which record date shall be no more than sixty (60) daysthe Series E Preferred Stock in to shares of Common Stock.

Dividends. (aThe Company and the Holders hereby agree to replace Section 3(a) The holders of in its entirety with the outstanding Class A-1 Preferred Stock following: “Dividends in Cash or in Kind. Holders shall be entitled to receive, out of funds legally available thereforeand the Corporation shall pay, cumulative dividends at the annual rate per share (as a percentage of 6the Stated Value per share) of 8% per annum of (subject to increase pursuant to Section 10(b)), payable quarterly on January 1, April 1, July 1 and October 1, beginning on the per share purchase price first such date after the Original Issue Date and on each Conversion Date ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 with respect only to Preferred Stock quarterly, on the fifteenth day of October, January, April and July then being converted) (each of such dates being date, a “Dividend Payment Date”) commencing (if any Dividend Payment Date is not a Trading Day, the applicable payment shall be due on the date next succeeding Trading Day) in cash, or at the Corporation’s option, in duly authorized, validly issued, fully paid and non-assessable shares of issuanceCommon Stock as set forth in this Section 3(a), or a combination thereof (the dollar amount to be paid in shares of Common Stock, the “Dividend Share Amount”). The form of dividend payments to each Holder shall be determined in the following order of priority: (i) if funds are legally available for the payment of dividends and the Equity Conditions have not been met during the 20 consecutive Trading Days immediately prior to the applicable Dividend Payment Date (the “Dividend Notice Period”), in cash only, (ii) if funds are legally available for the payment of dividends, the Equity Conditions have been met during the Dividend Notice Period, and shall be pro-rated for the first such quarterly period if Dividend Conversion Rate on the same Dividend Payment Date is less equal to or greater than 91 (ninety-one) days. All $2.35, at the sole election of the Corporation, in cash or shares of common stock Common Stock which shall be valued at the Fair Market Value Dividend Conversion Rate or a combination thereof. As used herein Fair Market Value shall mean in , (iii) if funds are not legally available for the case payment of stock on a given datedividends, the average Equity Conditions have been met during the Dividend Notice Period, and the Dividend Conversion Rate on the Dividend Payment Date is equal to or greater than $2.35, in shares of Common Stock which shall be valued at the closing bid prices Dividend Conversion Rate, (iv) if funds are not legally available for the Company’s common stock payment of dividends, the Equity Condition relating to an effective Conversion Shares registration statement has been waived by such Holder, and the Dividend Conversion Rate on the Dividend Payment Date is equal to or greater than $2.35, as to such Holder only, in unregistered shares of Common Stock which shall be valued at the Dividend Conversion Rate, and (v) if funds are not legally available for the ten trading days immediately preceding payment of dividends and the Equity Conditions have not been met during the Dividend Notice Period, or if the Dividend Conversion Rate on the Dividend Payment Date is less than $2.35, then, at the election of such Holder, such dividends shall accrue to the next Dividend Payment Date or shall be accreted to, and increase, the outstanding Stated Value. If no such election is made, such dividends shall accrue to the next Dividend Payment Date. Such dividends The Holders shall accrue on each have the same rights and remedies with respect to the delivery of any such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that shares as if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees were being issued pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysSection 6.”

Dividends. (a) The holders of the outstanding Class A-1 shares of Series 3 Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative dividends in cash at the annual rate of 6% per annum of the per share purchase price Liquidation Preference ($1.10) as hereinafter defined). Such dividends shall be payable commencing on June 30, 1997 and, thereafter, in equal semi-annual payments on each December 31 and June 30 (each of such dates being a "Dividend Payment Date"), in preference to dividends on any Common Stock or stock of any other class, ranking, as to dividend rights, junior to the Class A-1 Series 3 Preferred Stock. Such dividends shall be payable in shares paid to the holders of record at the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day close of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing business on the date specified by the Board of issuanceDirectors of the Corporation at the time such dividend is declared; provided, and however, that such date shall not be pro-rated for the first such quarterly period if the same is more than 60 days nor less than 91 (ninety-one) days. All shares of common stock shall be valued at 10 days prior to the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the respective Dividend Payment Date. Such Each of such semi-annual dividends shall be fully cumulative and shall accrue on each (whether or not declared and whether or not there shall be funds legally available for the payment of dividends) from the first day of the semi-annual period in which such share commencing on dividend may be payable as herein provided to the last day of such semi-annual period, except that the dividend for the period ending June 30, 1997 shall accrue from the date of issuethe issuance of the Series 3 Preferred Stock.. (b) For any semi-annual dividend period in which dividends are not paid at the rate stated above, and shall accrue from day to dayon the Dividend Payment Date first succeeding the end of such semi-annual dividend period, whether or not earned or declared. Such such accrued dividends shall be cumulative so that if added to the Liquidation Preference of the Series 3 Preferred Stock (solely for the purposes of calculating dividends payable on the Series 3 Preferred Stock pursuant to the first sentence of paragraph 2(a)) effective at the beginning of the semi-annual dividend period succeeding the semi-annual dividend period as to which such dividends were not paid and shall thereafter accrue additional dividends in respect of any previous quarterly dividend period shall not thereof at the rate stated above, until such unpaid dividends have been paid onin full, the deficiency shall be fully paid on or declared and set apart for at which time such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date subtracted (solely for the determination purpose of holders of Class A-1 calculating dividends payable on the Series 3 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60Stock) daysfrom the Liquidation Preference.

Dividends. (a) The holders Holders of the outstanding Class A-1 a particular series of Preferred Stock Shares shall be entitled to receive, when, as and if declared by the Board of Trustees of the Trust, out of funds legally available thereforetherefor, cumulative dividends each consisting of cash at the annual rate Applicable Rate and no more, payable on the respective dates set forth below. Dividends on the shares of 6% per annum each series of Preferred Shares so declared and payable shall be paid in preference to and in priority over any dividends declared and payable on the Common Shares. (i) Cash dividends on shares of each series of Preferred Shares shall accumulate from the Date of Original Issue and shall be payable, when, as and if declared by the Board of Trustees of the per share purchase price ($1.10) Trust, out of funds legally available therefor, commencing on the Initial Dividend Payment Date. Following the Initial Dividend Payment Date for a series of Preferred Shares, dividends on that series of Preferred Shares will be payable, at the option of the Class A-1 Preferred Stock. Such dividends shall be payable in shares Trust, either (i) with respect to any 7-Day Dividend Period and any Short Term Dividend Period of the Company’s Class A-1 Preferred Stock quarterly35 or fewer days, on the fifteenth day next succeeding the last day thereof, or (ii) with respect to any Short Term Dividend Period of Octobermore than 35 days and with respect to any Long Term Dividend Period, January, April monthly on the first Business Day of each calendar month during such Short Term Dividend Period or Long Term Dividend Period and July on the day next succeeding the last day thereof (each of such dates date referred to in clause (i) or (ii) being herein referred to as a “"Normal Dividend Payment Date”) commencing "), except that if such Normal Dividend Payment Date is not a Business Day, then the Dividend Payment Date shall be the first Business Day next succeeding such Normal Dividend -45- $$/BREAK/$$END Payment Date. Although any particular Dividend Payment Date may not occur on the originally scheduled date because of issuancethe 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 Preferred Shares is scheduled to begin on the same day and end on the same day as a Dividend Period for another series of Preferred Shares, then the last day of such Dividend Period for such other series of Preferred Shares shall be pro-rated 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 first such quarterly period if Board of Trustees of the same is less than 91 (ninety-one) daysTrust shall fix the Dividend Payment Date. All shares However, no Dividend Period of common stock any series of Preferred Shares shall be valued at co-extensive with any Dividend Period of any other series of Preferred Shares unless the Fair Market Value thereofTrust 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 Preferred Shares. As used herein Fair Market Value shall mean The Board of Trustees of the Trust before authorizing a dividend may change a Dividend Payment Date if such change does not adversely affect the contract rights of the Holders of Preferred Shares set forth in the case Declaration of stock Trust or the Bylaws. The Initial Dividend Period, 7-Day Dividend Periods and Special Dividend Periods with respect to a series of Preferred Shares are hereinafter sometimes referred to as "Dividend Periods." Each dividend payment date determined as provided above is hereinafter referred to as a "Dividend Payment Date." (ii) Each dividend shall be paid to the Holders as they appear in the Stock Register as of 12:00 noon, New York City time, on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately Business Day preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing Dividends in arrears for any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, to the Holders as they appear on the Stock Register on a date, not exceeding 15 days prior to the payment date therefor, as may be fixed by the Board of issue, Trustees of the Trust. (i) During the period from and shall accrue from day including the Date of Original Issue to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect but excluding the Initial Dividend Payment Date for a series of any previous quarterly dividend period shall not have been paid onPreferred Shares (the "Initial Dividend Period"), the deficiency shall be fully paid on or declared and set apart Applicable Rate for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders series of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend Preferred Shares shall be the date Initial Dividend Rate. Commencing on the Initial Dividend Payment Date for a series of declaration thereof Preferred Shares, the Applicable Rate on that series for each subsequent dividend period (hereinafter referred to as a "Subsequent Dividend Period"), which Subsequent Dividend Period shall commence on and include a Dividend Payment Date and shall end on and include the time of any distribution by purchase calendar day prior to the next Dividend Payment Date (or redemption of shares last Dividend Payment Date in a Dividend Period if there is more than one Dividend Payment Date), shall be equal to the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided rate per annum that where a negotiable debt security is issued in exchange for shares the time results from implementation of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysAuction Procedures.

Dividends. (a) The holders Holders as of 12:00 noon, New York City time, on the outstanding Class A-1 Preferred Stock applicable Dividend Payment Date, shall be entitled to receive, when, as and if declared by the Board of Trustees, out of funds legally available thereforetherefor, cumulative dividends dividends, at the annual rate Applicable Dividend Rate. Dividends on the shares of 6% per annum 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 per share purchase price ($1.10) alternative minimum tax provisions of the Class A-1 Preferred StockCode. Such 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 in on the applicable Dividend Payment Date to the Holder or Holders of such shares of the Company’s Class A-1 Preferred Stock quarterlyRP as set forth in paragraph 3(a). Dividends on any share of RP in arrears with respect to any past Dividend Payment Date may be declared and paid at any time, on the fifteenth day of October, January, April and July (each of such dates being a “without reference to any regular Dividend Payment Date”) commencing on , to the Holder of such share as of a date not exceeding five Business Days preceding the date of issuance, and payment thereof as may be fixed by the Board of Trustees. Any dividend payment made on any share of RP shall be pro-rated for first credited against the first such quarterly period if the same is less than 91 dividends accumulated but unpaid (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such ) 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 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 numerator 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 that obtained by $100,000. (g) No later than by 12:00 noon, New York City time, on each Dividend Payment Date, the Trust shall deposit in same-day funds with the Paying Agent the full amount of any dividend declared and payable on such Dividend Payment Date on any share of RP. (h) The Applicable Dividend Rate for each Dividend Period commencing during a Non-Payment Period shall be 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 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 each Dividend Period for shares of RP commencing after the first day of, and during, 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 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 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. 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 given at least seven days prior to such Tender Date to the 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 Period or if the Trust fails to maintain either the RP Basic Maintenance Amount or the 1940 Act RP Asset Coverage and such failure is not cured; (iv) if such Special Dividend Period contains 3 65 or more days, the shares of RP subject to such Special Dividend Period shall have an aggregate liquidation preference (exclusive of accumulated but unpaid dividends and premium, if any) of at least $30,000,000 or such greater or lesser amount as may be specified by the Board of Trustees; (v) in respect of any previous quarterly dividend period 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 (vi) in respect of any Special Dividend Period of 3 65 or more days, the Board of Trustees, after consultation with the Remarketing Agents, may establish Specific Redemption Provisions. On or before 5:00 p.m., New York City time, on the third Business Day prior to the designation of a 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 days to be specified as a Special Dividend Period and the 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 Board 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 the Dividend Period in respect of any share of RP which otherwise would have been paid onsubject to such Special Dividend 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) 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 deficiency Trust will, not later than 270 days after the end of the Trust's fiscal year for which such designation is made, provide notice thereof to the Paying Agent. The Paying Agent will mail a copy of such notice to each Qualified Investor (as defined below) at the address specified in such Qualified Investor's Master Purchaser's Letter as promptly as practicable after its receipt of such notice from the Trust. The Trust will, within 3 0 days after such notice is given to the Paying Agent, pay to the Paying Agent (who will then distribute to the Qualified Investors) , out of funds legally available therefor, an amount equal to the 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 fully paid on or declared and set apart for such shares before the Corporation makes any distribution calculated (as hereinafter definedi) without consideration being given to the holders time value of Common Stockmoney; (ii) assuming that no Qualified Investor is subject to the alternative minimum tax with respect to dividends received from the Trust; and (iii) assuming that each Nonqualifying Distribution and Gross-Up Dividend (to the extent that such Gross-up Dividend is not exempt from Federal income tax) would be taxable in the hands of each Qualified Investor at the maximum marginal corporate Federal income tax rate in effect during the fiscal year in question. Accrued but unpaid 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 shall not bear interest. “Distribution” in this section 5 means on the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend RP shall be binding and conclusive for all purposes of determining the date amount of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.Gross-up Dividends re

Dividends. (a) The holders of Commencing from and including the outstanding Class A-1 Preferred Stock First Tranche Closing Date, cash dividends shall be entitled to receive, out of funds legally available therefore, cumulative dividends accrue on the First Tranche at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall Dividend Rate and accumulate and be payable in shares arrears (i) on the dividend payment date falling 18 months following the First Tranche Closing Date (the “First Dividend Payment Date”) in respect of the Company’s Class A-1 period from and including the issuance date of the First Tranche to but excluding the First Dividend Payment Date (the “First Preferred Stock quarterlyDividend Period”), and (ii) thereafter on the fifteenth day of Octoberdates falling every six months following the First Dividend Payment Date (together with the First Dividend Payment Date, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average respect of the closing bid prices for period from and including the Company’s common stock for the ten trading days immediately preceding the previous Dividend Payment Date to but excluding the subsequent Dividend Payment Date (or the Maturity Date. Such ) (together with the First Preferred Dividend Period, each a “Preferred Dividend Period”). (b) If the Second Tranche is issued, commencing from and including the Second Tranche Closing Date, cash dividends shall accrue on the Second Tranche at the Dividend Rate and accumulate and be payable in arrears on each such share commencing Dividend Payment Date in respect of the related Preferred Dividend Period. (c) The amount of dividends payable on Series A Preferred Stock on any date prior to the end of a Preferred Dividend Period shall be computed on the date basis of issuea 360-day year consisting of twelve 30-day months, and actual days elapsed over a 30-day month. Dividends shall accrue from day to dayaccumulate whether or not in any Preferred Dividend Period there have been funds of the Corporation legally available for the payment of such Preferred Dividends. Dividends are payable on a cumulative basis once declared, whether or not earned or declared. Such dividends there shall be cumulative so funds legally available for the payment thereon. Dividends shall accrue and remain payable until the earlier of (i) the Conversion Date and (ii) the Maturity Date. The Corporation shall pay any and all withholding taxes that if such dividends may be payable in respect of any previous quarterly the dividend period shall not have been paid onpayments, the deficiency and all dividend payments shall be fully paid on or declared and set apart for such shares before the Corporation makes made net of any distribution required withholding taxes. (as hereinafter definedd) Subject to the holders foregoing, dividends (payable in cash, securities or other property) as may be determined by the Board of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash Directors or property without consideration, whether by way of dividend or otherwise (except a dividend in shares any duly authorized committee of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for be declared and paid on any other securities of the determination Corporation, including Common Stock and other Junior Securities, from time to time, and Holders of Series A Preferred Stock shall not be entitled to participate in any such dividends, provided, however, that, subject to the rights of holders of Class A-1 any Senior Securities, in the event that (i) the dividend payable with respect to a share of Preferred Stock in a Preferred Dividend Period pursuant to Section 4(a) is less than (ii) the aggregate amount of any distributions made with regard to the equivalent number of shares of Common Stock underlying such share of Preferred Stock during such Preferred Dividend Period (such shortfall being referred to as the “Dividend Shortfall”), Holders will be entitled to receive payment in respect of a each share of Preferred Stock, in addition to the dividend declared thereonpayable pursuant to Section 4(a), which record date shall be no more than sixty (60) daysan amount equal to the Dividend Shortfall.

Dividends. (a) The holders From and after the date of issuance of each share of Preferred Stock (the outstanding Class A-1 “Initial Issuance Date”), each holder of shares of Preferred Stock shall be entitled to receivereceive dividends (“Dividends”), which Dividends shall be paid by the Company out of funds legally available thereforetherefor, cumulative dividends payable, subject to the conditions and other terms hereof, in PIK Shares or cash, by wire transfer of immediately available funds, on the Stated Value of such shares of Preferred Stock at the annual rate Dividend Rate, which shall be cumulative and shall continue to accrue and compound annually whether or not declared and whether or not in any fiscal year there shall be net profits or surplus available for the payment of 6% per annum dividends in such fiscal year. Dividends on the shares of Preferred Stock shall commence accumulating on the Initial Issuance Date and shall be computed on the basis of a 365-day year and actual days elapsed. Dividends shall be payable quarterly in arrears on the first day of the per share purchase price next applicable quarter ($1.10each, a “Quarterly Dividend Date”) with the first Quarterly Dividend Date being January 1, 2015. If a Dividend Date is not a Business Day, then the Dividend shall be due and payable on the Business Day immediately following such Dividend Date. (b) Dividends shall be payable on each Quarterly Dividend Date, Mandatory Conversion Date, and the Redemption Date (each, a “Dividend Date”), to the record holders of the Class A-1 shares of Preferred Stock. Such dividends Stock on the applicable Dividend Date, Dividends shall be payable in cash or, at the election of the Company (the “PIK Election”) the Company may, so long as the PIK Conditions are fulfilled, pay Dividends in part or full by delivery of additional shares of the Company’s Class A-1 Preferred Stock quarterly, (“PIK Shares”). The Company shall deliver a written notice to each Holder on the fifteenth day of October, January, April and July Dividend Notice Due Date which notice (each of 1) either (A) confirms that Dividends to be paid on such dates being a “Dividend Payment Date”) commencing on the date of issuance, and Date shall be pro-rated for paid entirely in PIK Shares or (B) elects to pay Dividends as cash or a combination of cash and PIK Shares and specifies the first such quarterly period if the same is less than 91 (ninety-one) days. All shares amount of common stock Dividends that shall be valued at paid as cash and the Fair Market Value thereofamount of Dividends, if any, that shall be paid in PIK Shares and (2) certifies that as of the Dividend Date, the PIK Conditions will be satisfied, if any portion of the Dividends shall be paid in PIK Shares. As used herein Fair Market Value shall mean in the case of stock Dividends to be paid to each Holder on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends Date in PIK Shares shall be cumulative so that if such dividends paid in respect a number of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such non-assessable shares before the Corporation makes any distribution (as hereinafter defined) rounded to the holders nearest whole share) of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means Preferred Stock equal to the transfer amount of Dividends payable to such Holder on such Dividend Date, less any cash or property without considerationDividends paid, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired divided by the Corporation from employees pursuant Stated Value. The Company shall pay any and all taxes that may be payable with respect to the terms issuance and delivery of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysPIK Shares.

Dividends. (a) The So long as any shares of Series B Preferred Stock shall be outstanding, the holders of the outstanding Class A-1 such Series B Preferred Stock shall be entitled to receive, out if legally payable by the Board of funds legally available thereforethe Company, cumulative dividends preferential dividends, payable-in-kind in additional shares of Series B Preferred Stock of the same series, based upon the Liquidation Preference thereof, at the annual rate Dividend Rate on the Liquidation Preference hereunder, payable semi-annually on the first Business Day of 6% per annum July and January of each year, commencing July 1, 1998. If the Board of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such Company cannot legally declare or pay such dividends, then such dividends shall be payable in shares cumulative and compound semi-annually, shall begin to accrue and compound from the Original Issue Date, whether or not there shall be net profits or net assets of the Company’s Class A-1 Preferred Stock quarterly, on Company legally available for the fifteenth day payment of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuancethose dividends, and shall be propaid-rated in-kind as soon as such dividends are legally payable. Any such dividend payable for the first period from the Original Issue Date to the date hereof shall be payable based on the Liquidation Preference previously set forth in the Series B Preferred Original Certificate of Designation, and any such quarterly dividend payable for the period if after the same is less than 91 date hereof shall be payable based on the Liquidation Preference set forth herein. Dividends may not be paid in cash. (ninety-oneb) days. All So long as any shares of common stock Series B Preferred Stock shall be valued at outstanding, then, without the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average affirmative vote of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends Required Holders, (i) no dividend whatsoever shall accrue on each such share commencing on the date of issuebe paid or declared, and shall accrue from day to day, whether or not earned or declared. Such dividends no distribution shall be cumulative so that if such dividends in respect made, on account of any previous quarterly dividend period shall not have been paid on, the deficiency Common Stock or Series A Preferred Stock and (ii) no shares of Common Stock or Series A Preferred Stock shall be fully paid on repurchased, redeemed or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive planCompany, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend and no funds shall be the date of declaration thereof and the time of any distribution by purchase paid into or redemption of shares shall be the day cash set aside or property is transferred by the Corporation, whether or not pursuant to made available for a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date sinking fund for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereonpurchase, which record date shall be no more than sixty (60) daysredemption or acquisition thereof.

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) The 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 $10,000,000 in any fiscal year (excluding in any event non-cash charges related to employee compensation or compensation to non-executive members of USI’s board of directors) and (c) so long as no Default or Unmatured Default shall be 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 USI 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 USI and USI 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”) if, at the time of 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 (or, prior to the delivery of the outstanding Class A-1 Preferred Stock shall be entitled first such financial statements delivered hereunder, as of March 31, 2013) and giving effect to receivesuch Distribution and any Indebtedness incurred in connection therewith, out and any Permitted Acquisition (including any incurrence of funds legally available therefore, cumulative dividends at the annual rate Indebtedness in connection therewith) and Material Disposition (including any reduction of 6% per annum of the per share purchase price ($1.10Indebtedness in connection therewith) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on since the date of issuancesuch financial statements, as if such Distribution and any such Permitted Acquisition and Material Disposition (and any incurrence or reduction of Indebtedness in connection with any of the foregoing) had occurred as of the first day of the four quarter period set forth in such financial statements is (a) less than to 3.00 to 1.00, on an unlimited basis, and shall be pro-rated for (b) greater than or equal to 3.00 to 1.00, in an amount not greater than the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Maximum Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysAmount.

Dividends. (ai) The holders of shares of the outstanding Class A-1 Preferred Stock shall be entitled to receive, when, as and if dividends are declared by the Board of Directors out of funds of the Company legally available thereforetherefor, cumulative dividends from the Preferred Stock Issue Date accruing at the annual rate of 6% per annum of the per share purchase price ($1.10) 6.0% of the Class A-1 Preferred Stock. Such dividends shall be Liquidation Preference per share, payable quarterly in shares of the Company’s Class A-1 Preferred Stock quarterlyarrears on each March 31, June 30, September 30 and December 31, commencing on the fifteenth day of OctoberDecember 31, January, April and July 1998 (each of such dates being a “"Dividend Payment Date”) commencing "). If any such date is not a Business Day, such payment shall be made on the date next succeeding Business Day, to the holders of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average record as of the closing bid prices for the Company’s common stock for the ten trading days immediately next preceding the Dividend Payment March 1, June 1, September 1 and December 1 (each, a "Record Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day"), whether or not earned or declaredsuch Record Date is a Business Day. Such dividends shall Dividends will be cumulative so that if such dividends payable in respect cash. Dividends payable on the Preferred Stock will be computed on the basis of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof 365/366-day year and the time actual number of any distribution by purchase days elapsed and will be deemed to accrue on a daily basis. (ii) Dividends on the Preferred Stock shall accrue whether or redemption of shares shall be not the day cash Company has earnings or property is transferred by the Corporationprofits, whether or not pursuant there are funds legally available for the payment of such dividends and whether or not dividends are declared. Dividends will accumulate to the extent they are not paid on the Dividend Payment Date for the period to which they relate. The Company shall take all actions required or permitted under the Delaware General Corporation Law (the "DGCL") to permit the payment of dividends on the Preferred Stock, including, without limitation, through the revaluation of its assets in accordance with the DGCL, to make or keep funds legally available for the payment of dividends. (iii) No dividend whatsoever shall be declared or paid upon, or any sum set apart for the payment of dividends upon, any outstanding share of the 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 contract sufficient sum set apart for the payment of such dividend, upon all outstanding shares of Preferred Stock. Unless full cumulative dividends on all outstanding shares of Preferred Stock for all past dividend periods shall have been declared and paid, or declared and a sufficient sum for the payment thereof set apart, then: (a) no dividend (other than a divided payable solely in shares of any Junior Securities) shall be declared or paid upon, or any sum set apart for the payment of dividends upon, any shares of Junior Securities; (b) no other distribution shall be declared or made upon, or any sum set apart for the payment of any distribution upon, any shares of Junior Securities, other than a distribution consisting solely of Junior Securities; (c) no shares of Junior Securities shall be purchased, redeemed or otherwise acquired or retired for value (excluding an earlier date; provided that where a negotiable debt security is issued in exchange for shares of other Junior Securities) by the time Company or any of its subsidiaries; and (d) no monies shall be paid into or set apart or made available for a sinking or other like fund for the purchase, redemption or other acquisition or retirement for value of any shares of Junior Securities by the Company or any of its subsidiaries. Holders of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock will not be entitled to receive payment any dividends, whether payable in cash, property or stock, in excess of a dividend declared thereon, which record date shall be no more than sixty (60) daysthe full cumulative dividends as herein described.

Dividends. Declare or pay any dividends; or --------- purchase, redeem, retire, or otherwise acquire for value any of its capital stock now or hereafter outstanding; or make any distribution of assets to its stockholders as such whether in cash, assets, or obligations of the Company; or allocate or otherwise set apart any sum for the payment of any dividend or distribution on, or for the purchase, redemption, or retirement of, any shares of its capital stock; or make any other distribution by reduction of capital or otherwise in respect of any shares of its capital stock; or permit any of its Restricted Subsidiaries (unless failure to so permit would constitute a breach of fiduciary duty) to purchase or otherwise acquire for value any stock of the Company or another Restricted Subsidiary, except that (1) the Company may declare and deliver dividends and make distributions payable solely in (a) The holders common capital stock of the outstanding Class A-1 Preferred Stock shall be entitled to receive, out of funds legally available therefore, cumulative Company or (b) dividends at the annual rate of 6% per annum on any Permitted Junior Securities (as defined below) payable in Permitted Junior Securities of the per share same type, (2) in connection with the purchase price ($1.10) of minority equity interests held by Persons in any Restricted Subsidiary of the Class A-1 Company, the Company may issue its 10% Series A Exchangeable Preferred Stock. Such (par value .01 per share) or other equity securities which are pari passu or junior thereto; provided (x) the redemption date thereof -------- shall not be earlier than the redemption date in the 10% Series A Exchangeable Preferred as of the Restructuring Effective Date, (y) no cash dividends shall be payable in shares respect thereof and (z) the terms and conditions thereof shall not be adverse in any respect to the interests of the Lenders (collectively, the "Permitted Junior Securities") or (3) Guarantors may purchase or otherwise acquire for value stock of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of Octoberprovided, January, April and July (each of that any such dates being a “Dividend Payment Date”) commencing on the date of issuance, and Guarantor shall be pro-rated -------- use such stock as consideration for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean or in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of connection with any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees acquisition permitted pursuant to the terms of any employee incentive plan, agreement or arrangementthis Agreement. (F) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.SECTION 4.7 OF THE FACILITIES AGREEMENT IS AMENDED TO DELETE THE ----------- TERMS THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:

Dividends. (ai) The holders of the outstanding Class A-1 Preferred Stock Holder shall be entitled to receive, out of funds legally available thereforefor the payment of dividends, cumulative dividends at the annual rate Dividend Rate on the Stated Value of 6% per annum each share of the per share purchase price ($1.10) Series I Preferred Stock on and as of the Class A-1 Preferred Stock. Such each Dividend Payment Due Date with respect to each Dividend Period; provided, however, that if any dividend is not paid in full on any Dividend Payment Due Date, dividends shall thereafter accrue and be payable in shares at the Default Dividend Rate on the Stated Value of the Company’s Class A-1 each share of Series I Preferred Stock quarterly, until all accrued dividends are paid in full. Dividends on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and Series I Preferred Stock shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on cumulative from the date of issue, and shall accrue from day to day, whether or not earned declared for any reason, including if such declaration is prohibited under any outstanding indebtedness or declaredborrowings of the Corporation or any of its Subsidiaries, or any other contractual provision binding on the Corporation or any of its Subsidiaries, and whether or not there shall be funds legally available for the payment thereof. (ii) Each dividend shall be payable in equal quarterly amounts on each Dividend Payment Due Date, commencing May 15, 2005, to the Holders of record of shares of the Series I Preferred Stock, as they appear on the stock records of the Corporation at the close of business on such record date, not more than 60 days or less than 10 days preceding the payment dates thereof, as shall be fixed by the Board of Directors; provided, however, until February 14, 2006, dividends shall accrue but shall not be payable until February 15, 2006. Such Accrued and unpaid dividends for any past Dividend Period may be declared and paid at any time, without reference to any Dividend Payment Due Date, to Holders of record, not more than 15 days preceding the payment date thereof, as may be fixed by the Board of Directors. (iii) Dividends due hereunder shall be payable in cash; provided, however, that at the option of the Corporation, such dividends shall be cumulative so paid either (x) in cash or (y) through the issuance of duly and validly authorized and issued, fully paid and nonassessable, freely tradable shares of the Common Stock valued at the Market Price and registered for resale in the open market transactions on the Registration Statement (as defined in the Registration Rights Agreement), which Registration Statement shall then be effective under the Securities Act; provided, further, that if such no funds are legally available for the payment of cash dividends on the Series I Preferred Stock, dividends shall be paid as provided in clause (y) above. (b) Except as provided in Section 4(d) hereof, the Holder shall not be entitled to any dividends in respect excess of the cumulative dividends, as herein provided, on the Series I Preferred Stock. (c) So long as any shares of the Series I Preferred Stock are outstanding, no dividends shall be declared or paid or set apart for payment or other distribution declared or made upon any Junior Securities, nor shall any Junior Securities be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of shares of Common Stock made for purposes of an employee incentive or benefit plan (including a stock option plan) of the Corporation or any Subsidiary) for any consideration by the Corporation, directly or indirectly, nor shall any moneys be paid to or made available for a sinking fund for the redemption of any previous quarterly dividend period shares of any Junior Securities, unless in each case (i) the full cumulative dividends required to be paid in cash on all outstanding shares of the Series I Preferred Stock shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before payment for all past Dividend Periods with respect to the Series I Preferred Stock and (ii) sufficient funds shall have been paid or set apart for the payment of the dividend for the current Dividend Period with respect to the Series I Preferred Stock. (d) If the Corporation makes shall at any time or from time to time after the Issue Date declare, order, pay or make a dividend or other distribution (including, without limitation, any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash stock or other securities or property without consideration, whether or rights or warrants to subscribe for securities of the Corporation or any of its Subsidiaries by way of dividend or otherwise (except a dividend in spin-off) on shares of its Common Stock, then, and in each such case, in addition to the Corporation) or the purchase or redemption of shares dividend obligation of the Corporation for cash or property (except for an exchange of shares of specified in Section 4(a) hereof, the Corporation shall declare, order, pay and make the same dividend or shares acquired by the Corporation from employees pursuant distribution to each Holder of Series I Preferred Stock as would have been made with respect to the terms number of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary Common Shares the Holder would have received had it converted all of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 its Series I Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysShares.

Dividends. The Borrower will not declare or pay any dividend (other than dividends payable solely in stock of the Borrower) on any class of its stock or make any payment on account of the purchase, redemption or other retirement of any shares of such stock or make any distribution in respect thereof, either directly or indirectly, except that the foregoing shall not prohibit: (a) Any payment expressly permitted under Section 6.7. (b) The holders payment of any dividend within 60 days after the outstanding Class A-1 Preferred Stock shall be entitled to receive, out date of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each declaration of such dates being a “Dividend Payment Date”) commencing dividend if the dividend would have been permitted on the date of issuancedeclaration. (c) So long as no Default or Event of Default has occurred and is continuing, and shall be pro-rated the distribution of any stock of the Borrower either (i) solely in exchange for equity interests of the first such quarterly period if Borrower, or (ii) through the same is less application of net proceeds of a substantially concurrent sale for cash (other than 91 (ninety-oneto a Subsidiary of the Borrower) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for Borrower. (d) So long as no Default or Event of Default has occurred and is continuing, payments by the Company’s common Borrower to redeem or repurchase, or to enable Holdings to redeem or repurchase, stock for of Holdings or the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue Borrower issued to or on each such share commencing on the date behalf of issuedirectors, officers and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares employees of the Corporation) or the purchase or redemption of shares Borrower pursuant to any policy of the Corporation for cash or property (except for an exchange of shares Borrower with respect to directors, officers and employees of the Corporation Borrower who have died or shares acquired by become disabled, or whose employment or other relationship with the Corporation from employees Borrower has been terminated, or pursuant to the terms of any employment contracts, other agreements or employee incentive planstock option or stock benefit plans of Holdings or the Borrower; provided, agreement or arrangementhowever, that the aggregate amount paid under this paragraph (d) including any such transfer, purchase or redemption by a subsidiary of after the Corporation. The time date hereof shall not as of any distribution by way date exceed the sum of dividend shall be (i) $1,000,000, and (ii) the product of (A) $1,000,000, and (B) the number of full calendar years ending on or after December 31, 1998 and before the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred such determination. (e) Payments by the CorporationBorrower to Holdings on account of operating and administrative expenses of Holdings, whether including but not limited to directors' fees and expenses, legal and audit expenses, and corporate franchise and other taxes, so long as the aggregate amount so paid in any single calendar year does not exceed $500,000. (f) Payments made or to be made in connection with the Recapitalization or to Holdings to enable Holdings to make such payments, so long as the aggregate amount of such payments does not pursuant exceed $19,000,000. (g) Payments to a contract Holdings in an amount not in excess of, and for the purpose of an earlier date; provided that where a negotiable debt security is issued enabling Holdings' payment of, the then-current tax liability of Holdings in exchange for shares the time respect of the distribution is taxable income of the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled Borrower imputed to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysHoldings.

Dividends. (a) The holders All cash and non-cash proceeds of the outstanding Class A-1 Preferred Stock Collateral, including, without limitation, any dividends, interest and other distributions on the Collateral, received by Secured Party or the Custodian shall be entitled credited to receivethe Collateral Account. For the avoidance of doubt, out as described in Section 3(a), any and all amounts paid or credited to the Collateral Account (including with respect to dividends or distributions) shall be net of funds legally available thereforeany Taxes required to be withheld, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10including Taxes withheld under 871(m) of the Class A-1 Preferred StockU.S. Internal Revenue Code or similar or analogous provisions under any tax law of an applicable jurisdiction. Such dividends All cash and non-cash proceeds of the Collateral, including, without limitation, any dividends, interest and other distributions on the Collateral, received by Grantor shall be payable received in shares trust for the benefit of Secured Party, shall be segregated from other property of Grantor and shall immediately be delivered over to the Company’s Class A-1 Preferred Stock quarterlyCustodian to be credited to the Collateral Account to be held as Collateral in the same form as received or in such other manner as Secured Party may instruct (with any necessary endorsement). Unless an Event of Default with respect to Grantor as the Defaulting Party or a Termination Event with respect to Grantor as sole Affected Party has occurred and is continuing or an Early Termination Date has been designated, on Secured Party shall pay over, or cause to be paid over, to Grantor any Manufactured Dividend (defined below), but solely to the fifteenth day of October, January, April and July (each extent the amount of such dates being a “Manufactured Dividend exceeds any corresponding Dividend Payment Date”obligation under the Confirmation (and, for the avoidance of doubt, the parties’ obligations to make any Dividend Payment or pay any Manufactured Dividend amounts with respect to the same Cash Dividend (defined in the Master Confirmation) commencing on the date of issuance, and shall be pro-rated for netted against one another, such that only the first party with the greater payment obligation shall make payment of such quarterly period if the same is less than 91 (ninety-one) daysexcess amount). All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value “Manufactured Dividend” shall mean in the case amount of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether any cash dividend or not earned or declared. Such dividends shall be cumulative so that if such dividends distribution made in respect of any previous quarterly dividend period shall not the Shares that have been paid onRehypothecated, after netting any applicable withholding taxes that would apply to (i) such dividend or distribution received by Secured Party from the deficiency shall be fully paid on Issuer and (ii) the further payment of the amount representing such dividend or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter definedafter netting any withholding taxes in (i)) by Secured Party to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysGrantor.

Dividends. (a) The Except as set forth below, holders of the outstanding Class A-1 Series A Convertible Preferred Stock shall be entitled to receive, when and as declared by the Board, and out of any funds legally available thereforetherefor, cumulative dividends at the annual rate of 6% per annum of the per share purchase price eight percent ($1.108%) of the Class A-1 Preferred Stock. Such dividends shall be Series A Liquidation Preference (as hereinafter defined) per share of Series A Convertible Preferred, payable quarterly in shares of the Company’s Class A-1 Preferred Stock quarterlycash, on the fifteenth last day of OctoberMarch, JanuaryJune, April September and July (December of each of such dates being a “Dividend Payment Date”) year, commencing on September 30, 2000 (or the date of issuance, next succeeding business day). Dividends on the Series A Convertible Preferred shall accumulate and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issuefrom September 30, 2000 and shall accrue from day to dayday thereafter, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of to any previous or current quarterly dividend period dividend, at the applicable annual rate specified above, shall not have been paid onor declared and a sum sufficient for the payment thereof set apart, the deficiency shall first be fully paid on before any dividend or other distribution shall be paid or declared and set apart for such shares before the Corporation makes any distribution Junior Securities (as hereinafter defined). Any provision of this Section 2(a) to the contrary notwithstanding, in the event of the closing of a Qualified Public Offering (as hereinafter defined) on or prior to September 15, 2002, all accrued and unpaid dividends with respect to the Series A Convertible Preferred shall terminate. (b) Unless approved by the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means a majority of the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in outstanding shares of the CorporationSeries A Convertible Preferred: (i) no dividend shall be paid or the purchase declared, and no distribution shall be made, on any Junior Securities; and (ii) no Junior Securities shall be purchased, redeemed or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares 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 until all dividends declared or required to be declared on the Series A Convertible Preferred shall have been paid and set apart. As used herein, "Junior Securities" shall mean the Common Stock, par value $.01 per share, of the Corporation (the "Common Stock") and shares of all other series of capital stock issued from employees pursuant time to time by the Corporation other than any series of capital stock the terms of any employee incentive planwhich expressly provide that the capital stock of such series rank senior to or on parity with the Series A Convertible Preferred with respect to dividend rights or distributions upon liquidation, agreement dissolution or arrangement) including any such transfer, purchase or redemption by a subsidiary winding up of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Subject to applicable law, except for share capitalizations or distributions for which adjustments are to be made pursuant to Section 7, Holders shall be entitled to receive, and the Company shall pay, dividends on Preference Shares equal (on an as-if-converted-to-Ordinary Shares basis, disregarding for such purpose any conversion limitations or restrictions hereunder) to and in the same form as dividends actually paid on the Ordinary Shares when, as and if such dividends are paid on Ordinary Shares. If the Nasdaq Approval is not obtained at the Company’s 2023 annual general meeting (the “2023 Meeting”), subject to applicable corporate law, the Company shall pay a non-cumulative cash dividend on each Preference Share out of any funds that are legally available therefore, cumulative dividends therefor under applicable corporate law at the annual rate of 6% fourteen percent (14%) per annum of the per share purchase price outstanding Stated Value of such Preference Share, which shall be payable annually in arrears on September 30 ($1.10a “Cash Dividend”) of each year (unless any such day is not a Business Day, in which event such Cash Dividend shall be payable on the Class A-1 Preferred Stocknext succeeding Business Day, without accrual to the actual payment date), initially commencing to accrue on the 2023 Meeting date and ending on the Nasdaq Approval Date. Such Any Cash Dividend which is payable on the Preference Shares pursuant to this Section 3 for any period shall be computed on the basis of a 360 day year and the actual number of days elapsed. No other dividends shall be payable paid on the Preference Shares. In the event that the Company is prohibited from paying any Cash Dividend under the applicable corporate law, the Company shall so notify to the Holder in shares writing setting forth the basis therefor, and in connection therewith, the Company shall issue and deliver to the Holder an unsecured promissory note equivalent to the amount of the required Cash Dividend so prohibited (“Prohibited Cash Dividend”), which promissory note (any such note, a “14% Note”) shall (i) mature in one year from the Cash Dividend payment date, (ii) discharge in full the Company’s Class A-1 Preferred Stock quarterly, obligation to pay such Prohibited Cash Dividend and no Cash Dividend shall be deemed to have accrued and (iii) accrual of simple interest at 14% per annum shall be computed on basis of a 360 day year and the actual number of days elapsed. The Company shall not pay any dividends on the fifteenth day of October, January, April Ordinary Shares unless the Company simultaneously complies with this provision and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same no 14% Note is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysoutstanding.

Dividends. (a) The holders of the outstanding Class A-1 Series B Preferred Stock Shares shall be entitled to receive, when and as declared by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative dividends per Series B Preferred Share payable in cash at the annual rate of 6applicable Annual Dividend Rate; provided, however, that if any dividend payable on any Dividend Payment Date is not paid in full in cash on such Dividend Payment Date, the amount payable as dividends on such Dividend Payment Date that is not paid in cash on such Dividend Payment Date shall automatically, without any further action by the Corporation, be added to the Liquidation Preference on the relevant Dividend Payment Date at the Annual Dividend Rate applicable with respect to dividends not paid in cash; provided further, however, that the dividend payment payable on the initial Dividend Payment Date shall include 56.9% per annum of the per share purchase price ($1.10) of accrued and unpaid dividends on Series A Preferred Shares being exchanged pursuant to the Class A-1 Preferred StockExchange Agreement through and including the Issue Date. Such dividends Each such dividend payable in cash shall be payable in shares arrears to the holders of record of the Company’s Class A-1 Series B Preferred Stock quarterlyShares, as they appear on the fifteenth day stock records of Octoberthe Corporation at the close of business on each record date, January, April and July which shall not be more than 30 days preceding the applicable Dividend Payment Date (each of such dates being a the “Dividend Payment Record Date”) commencing on the date of issuance), and as shall be pro-rated for fixed by the first such quarterly period if the same is less than 91 (ninety-one) daysBoard of Directors. All shares The amount of common stock accrued and unpaid dividends on any Series B Preferred Stock at any date shall be valued the amount of any dividends thereon, calculated at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given applicable Annual Dividend Rate, to and including such date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends , which have not been paid; provided that an amount equal to any dividend that was not paid in cash on any applicable Dividend Payment Date shall be cumulative added to the Liquidation Preference in accordance with this Section 3(a) and such dividend not paid in cash and so that if such dividends in respect of any previous quarterly dividend period 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 shorter or longer than a full Dividend Period, on the Series B Preferred Shares shall be computed on the basis of four 90-day quarters and a 360-day year. Holders of Series 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 Series B Preferred Shares. (c) All dividends paid 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 paid on, the deficiency shall be fully paid on 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 shares before payment on the Corporation makes any distribution (as hereinafter defined) Series B Preferred Shares for the immediately preceding Dividend Period and on the Parity Shares for the immediately preceding period applicable to the holders 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 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 authorized and declared ratably in proportion to the respective amounts of dividends accrued and unpaid on the Series B Preferred Shares and such class or classes or series of Parity Shares. (e) 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 Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” Shares made for purposes of and in this section 5 means the transfer compliance with requirements of cash an employee incentive or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares benefit plan of the Corporation or shares acquired by any subsidiary) for any consideration (or any moneys to be paid to or made available for a sinking fund for the Corporation from employees pursuant to the terms redemption of any employee incentive plan, agreement or arrangementshares of such stock) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether directly or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in indirectly (except by conversion or exercise into or exchange for shares Junior Shares), unless in each case the time of the distribution is the date when the Corporation acquires the shares full accrued and unpaid dividends on all outstanding Series B Preferred Shares shall have been paid in such exchange. The Board of Directors may fix a record date cash and on any other Parity Shares shall have been previously paid for the determination immediately preceding Dividend Period and the immediately preceding dividend period applicable to the Parity Shares. (f) In any case where any Dividend Payment Date shall not be a Business Day, then (notwithstanding any other provision of holders this Certificate of Class A-1 Preferred Stock entitled to receive Designation) payment of a dividend declared thereondividends need not be made on such date, which record 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 be no more than sixty (60) daysaccrue on such amount of dividends for the period from and after such Dividend Payment Date.

Dividends. (a) The holders of From and including the outstanding Class A-1 Preferred Stock Issue Date, Holders 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 each outstanding Series A Preferred Share at the Dividend Rate, out of funds legally available thereforefor payment thereof (such dividends, cumulative dividends at “Cash Dividends”) on the annual rate Liquidation Preference in effect immediately after the immediately preceding Dividend Payment Date (or if there has been no prior Dividend Payment Date, the Issue Date), computed on the basis of 6% per annum a 360-day year consisting of twelve 30-day months and compounded quarterly beginning on the per share purchase price Issue Date ($1.10each such amount, a “Dividend Amount”). (b) of the Class A-1 Preferred Stock. Such dividends Cash Dividends shall be payable in shares of arrears on each Dividend Payment Date, to the Holders as they appear on the Company’s Class A-1 stock register at the close of business on the relevant Dividend Record Date. Dividends on the Series A Preferred Stock quarterlyshall accumulate and become Accrued Dividends on a day-to-day basis from, on but not including, the fifteenth day of October, January, April and July (each of such dates being a “immediately preceding Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period or if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the 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 such accumulated amounts or the Liquidation Preference is increased in respect of such accumulated amounts pursuant to Section 3(c) or Section 3(d). Such dividends If a Dividend Payment Date is not a Business Day, then any Cash Dividend in respect of such Dividend Payment Date shall accrue on each such share commencing be due and payable on the date of issue, and shall accrue from day first Business Day following such Dividend Payment Date. (c) If the Company fails to day, whether pay or not earned or declared. Such dividends shall be cumulative so that if such dividends declare a Cash Dividend in respect of any previous quarterly Dividend Payment Date, then the amount of the Accrued Dividends with respect to such shares of Series A Preferred Stock shall be deemed to be Accumulated Dividends and be added, effective as of such Dividend Payment Date, to the Liquidation Preference until such time, if any, as such Cash Dividend is actually paid in cash. (d) Notwithstanding anything to the 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 Company in accordance with Section 7 or Section 8, then the amount of the Accrued Dividends with respect to such shares of Series A Preferred Stock 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 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 Record Date for a Cash Dividend that has been declared and on or prior to 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 (and the 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 Issuer Date) to, but not including, the 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 Series A Preferred Stock remains outstanding, no dividend period or distribution shall not have been be declared or paid on, the deficiency and no redemption or repurchase shall be fully paid on 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 Dividend Periods (including the Dividend Period in which such accumulated and unpaid dividends first arose) of the Company have been declared and set apart paid and no such dividend or distribution or redemption or repurchase shall be paid or payable in cash for such shares before any period unless the Corporation makes any distribution Series A Preferred Stock has been paid full Cash Dividends in respect of the same period (as hereinafter defined) to i.e., that are not Accumulated Dividends); provided, however, that the holders of Common Stock. Accrued but unpaid dividends foregoing limitation shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise apply to (except i) a dividend payable on Common Stock or other Junior Stock in shares of Common Stock or other Junior Stock, (ii) the Corporation) or the purchase or redemption acquisition of shares of the Corporation for cash Common Stock or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued other Junior Stock in exchange for shares of Common Stock or other Junior Stock and the time 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 distribution is 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 date when administration of any employee benefit plan in the Corporation acquires 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. 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 each other the same ratio that accumulated and unpaid dividends per share on the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 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 receive payment of a any dividend declared thereonpaid on any Common Stock or other Junior Stock, which record date shall be no more than sixty (60) daysany dividend paid on any Parity Stock or any dividend paid on any Senior Stock.

Dividends. 10.1 Unless it has insufficient distributable reserves to do so, the Company shall, if the GSK Shareholder directs the Company to do so, declare and pay a special dividend to the GSK Shareholder in an amount that is equal to any proceeds received (a) The holders without duplication of Section 2.8 of the outstanding Class A-1 Preferred Stock shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum SAPA) by any member of the per share purchase price Company’s Group ($1.10net of any Tax suffered thereon) in respect of the Class A-1 Preferred Stocksale pursuant to the Horlicks SPA (for the avoidance of doubt, not including any proceeds received pursuant to the Amended Consignment Selling Agreement) within five Business Days of the completion of such sale. Such dividends Any such special dividend shall be payable in shares priority to any other dividend payable by the Company or any amount outstanding (in respect of interest, principal or otherwise) under any Shareholder Loan(s). To the extent that the Company has insufficient distributable reserves to pay all or some of a special dividend within the five Business Day time period, any unpaid amount shall be payable as a dividend in priority to any other dividend payable by the Company or any amount outstanding (in respect of interest, principal or otherwise) under any Shareholder Loan(s). 10.2 Subject to clauses 10.1 and 10.3, in respect of each Quarterly Accounting Period (beginning with the first Quarterly Accounting Period included within the first full Half-Yearly Accounting Period falling after Completion), the Company shall distribute to the Shareholders, in proportion to their respective Percentage Interests as at the relevant record date and as a dividend on the A Shares and the B Shares, not less than an amount that is equal to the aggregate amount of Readily Available Cash held by the Company’s Group specified in the relevant Quarterly Accounts as is in excess of the Base Cash Amount. The parties acknowledge and agree that in priority to any dividend paid on the A Shares and the B Shares pursuant to this clause 10.2 a dividend of 0.01 per cent. of the aggregate amount that would otherwise have been payable to the Shareholders pursuant to this clause 10.2 shall first be paid to the holder(s) of Preference Shares. For the avoidance of doubt, the Board may resolve to pay dividends on the A Shares and the B Shares in excess of the amount provided by this clause 10.2 (subject always to clauses 10.3 and 12.1). 10.3 The Company shall only be required to declare and/or pay dividend(s) in accordance with clause 10.2 to the extent that: (A) it has sufficient distributable reserves, and (without limiting the Shareholders’ and the Company’s obligations hereunder) the Board resolves, to do so; and (B) there are no amounts outstanding (in respect of interest, principal or otherwise) under any Shareholder Loan(s); and (C) there are no outstanding special dividends in respect of payment obligations pursuant to clause 10.1 which have been declared or become payable. 10.4 Dividends in respect of any Quarterly Accounting Period shall be declared and paid, unless otherwise agreed between the parties, no later than the later of: (A) two months following the end of such Quarterly Accounting Period; and (B) the first Business Day that is at least ten days after the first Board meeting that is held following the production of the unaudited quarterly report of the Company’s Class A-1 Preferred Stock quarterly, on Group by the fifteenth day Executive Management in respect of October, January, April and July (each of such dates being that Quarterly Accounting Period. 10.5 Except where dividends are to be paid in a “Dividend Payment Date”) commencing on currency other than Sterling in accordance with the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average terms of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issueSAPA, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such paid in Sterling. All dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency Quarterly Accounting Period shall be fully paid to all the Shareholders on or declared the same day and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend inter-bank transfer or otherwise by other electronic means for same day value directly to an account with a bank or other financial institution (except a dividend or other organisations operating deposit accounts) as notified in shares writing by the relevant Shareholder to the Company. In the absence of any such notification, the Company shall hold the amount of the Corporation) or relevant dividend on trust for the purchase or redemption of shares relevant Shareholder. 10.6 The Shareholders and the Company shall cooperate and take such steps as are reasonably required in connection with distributable reserves planning for the Company and its Group. 10.7 The Company shall instruct its auditors to report on the distributable reserves position of the Corporation Company at the same time as they sign their report on the Accounts. 10.8 The Company shall, so far as it is legally able to do so, procure that (and the Shareholders shall, so far as they are legally able to do so, exercise their rights in relation to the Company and under this agreement to procure that) all resolutions for cash the declaration or property (except for an exchange payment of shares dividends or other payments consistent with this clause 10 are duly passed by the relevant members of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof Company’s Group and the time Board (as applicable). 10.9 For the avoidance of any distribution by purchase doubt, nothing in this clause 10 shall prevent or redemption of shares shall be restrict the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time payment of the distribution is contemplated by clause 17.32 in connection with a Pre-Separation Recapitalisation or shall limit the date when Shareholders’ respective rights and obligations under the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysStructuring Considerations Agreement.

Dividends. (ai) The holders of Beginning on the outstanding Class A-1 Preferred Stock Issue Date, each Holder shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforetherefor, cumulative distributions in the form of dividends on each whole or fractional share of Series A Preferred Stock, at the annual a rate of 6% per annum of the per share purchase price equal to ten and seven-eighths percent ($1.1010 7/8%) of the Class A-1 Liquidation Preference per share of the Series A Preferred Stock, payable quarterly. Such All dividends with respect to each whole or fractional share of Series A Preferred Stock shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to daycumulative, whether or not earned or declared. Such dividends , on a daily basis from the Issue Date with respect to such whole or fractional share, and shall be cumulative so payable quarterly in arrears on each Dividend Payment Date, commencing on the first Dividend Payment Date after the Issue Date with respect to such whole or fractional share; provided that if any dividend payable on any Dividend Payment Date on or before the fifth anniversary of the Initial Preferred Stock Issue Date is not declared and paid in full in cash on such Dividend Payment Date, the amount payable as dividends on such Dividend Payment Date that is not paid in cash on such Dividend Payment Date shall be paid by the Company on such date by the issuance of additional fully paid and non-assessable shares (including fractional shares, if applicable, or, at the Company's option, cash in lieu of such fractional shares) of Series A Preferred Stock having an aggregate Liquidation Preference equal to the amount of such dividends (rounded to the nearest whole cent). The payment by the Company in such additional shares of Series A Preferred Stock shall constitute full payment of such dividend. Dividends payable on any Dividend Payment Date after the fifth anniversary of the Preferred Stock Issue Date shall be paid only in cash. If any dividend (or portion thereof) payable on any Dividend Payment Date after the fifth anniversary of the Initial Preferred Stock Issue Date is not declared or paid in full in cash on such Dividend Payment Date, the amount of such dividend that is payable and that is not paid in cash on such date shall accrue interest at the annual dividend rate plus 5% until declared and paid in full, compounded quarterly. Each distribution in the form of a dividend shall be payable to the Holders of Series A Preferred Stock of record as they appear on the stock books of the Company on such record dates, not less than 10 nor more than 45 days preceding the related Dividend Payment Date, as shall be fixed by the Board of Directors. Dividends shall cease to accumulate in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation Series A Preferred Stock on the Exchange Date or on the date of their earlier redemption unless the Company shall have failed to issue the appropriate aggregate principal amount of Exchange Notes in respect of the Series A Preferred Stock on the Exchange Date or shall have failed to pay the relevant redemption price on the date fixed for cash or property redemption. (except ii) All dividends paid with respect to shares of the Series A Preferred Stock pursuant to paragraph (c)(i) shall be paid pro rata to the Holders thereof entitled thereto. (iii) Dividends on account of arrears for an exchange any past Dividend Period may be declared and paid at any time, without reference to any regular Dividend Payment Date, together with all accrued and unpaid interest thereon, to Holders of Series A Preferred Stock of record on such date, not more than 45 days prior to the payment thereof, as may be fixed by the Board of Directors. (iv) Holders of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend Series A Preferred Stock shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment the dividends provided for in paragraph (c)(i) hereof in preference to and in priority over any dividends upon any of the Junior Securities. (v) Holders of shares of the Series A Preferred Stock shall be entitled to receive the dividends provided for in paragraph (c)(i) hereof on a pro rata basis with respect to any dividends upon any Parity Securities. (vi) Dividends payable on shares of the Series A Preferred Stock for any period less than a year shall be computed on the basis of a dividend declared thereon360-day year of twelve 30-day months. If any Dividend Payment Date occurs on a day that is not a Business Day, which record date any accrued dividends otherwise payable on such Dividend Payment Date shall be no more than sixty (60) dayspaid on the next succeeding Business Day.

Dividends. (a) The holders From and after the date of the outstanding Class A-1 issuance of each Series A Preferred Stock Share, Holders shall be entitled to receivereceive in respect of each such Series A Preferred Share cumulative dividends accruing on a quarterly basis at the Dividend Rate on the Current Liquidation Preference of such Series A Preferred Share as in effect from time to time, out of funds whether or not the Company has assets legally available thereforeto make payment thereof. With respect to any Regular Dividend Payment Date, the Company may declare and pay such cumulative dividends dividends, to the extent permitted by Applicable Law, at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterlysole discretion, to the Holders in cash in arrears on the fifteenth day of October, January, April and July (each of such dates being a “Regular Dividend Payment Date”) commencing ; provided that, to the extent any such cumulative dividends are not paid to the Holders in cash on any Regular Dividend Payment Date, they shall automatically and without any action by the date of issuanceCompany or the Board, be compounded in arrears and shall be pro-rated for added to the first Current Liquidation Preference effective as of such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Regular Dividend Payment Date. Such For the avoidance of doubt, dividends shall not accrue on each such share commencing in respect of Series A Preferred Shares for any period less than a quarterly interval. (b) Each dividend on the Series A Preferred Shares shall be paid pro rata to the Holders entitled thereto. The record date for payment of issue, and shall accrue from Regular Dividends will be the date that is the fifteenth (15th) calendar day to daybefore the applicable Regular Dividend Payment Date, whether or not earned or declared. Such such date is a Business Day, and dividends shall only be cumulative so that if payable to holders of record of the Series A Preferred Shares as such dividends holders appear on the stock register of the Company at the Close of Business on the related record date. (c) Except as set forth in Section 2.2(a) in respect of any previous quarterly dividend period shall the compounding of accrued dividends if not have been paid onin cash on the applicable Regular Dividend Payment Date, no Regular Dividend may be declared with respect to the deficiency shall Series A Preferred Shares unless paid to the Holders immediately on the Regular Dividend Payment Date in cash (it being understood that no Regular Dividends may be fully paid on or declared and set apart paid in securities or otherwise “in kind”). (d) If the Conversion Date for such shares before the Corporation makes any distribution (as hereinafter defined) Series A Preferred Shares is prior to the holders Close of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix Business on a record date set for the determination payment of holders any Regular Dividends, the Holder of Class A-1 Preferred Stock such shares will not be entitled to receive such Regular Dividend in respect of such record date. If the Conversion Date for any Series A Preferred Shares is on or after the Close of Business on a record date set for payment of a dividend declared thereonany Regular Dividends and prior to the applicable Regular Dividend Payment Date, which the Holder of such shares as of such record date shall be no more than sixty entitled to receive such Regular Dividend, notwithstanding the conversion of such shares prior to the applicable Regular Dividend Payment Date. (60e) daysThe payment of any dividend, whether a Regular Dividend or otherwise, including accrued or deemed dividend amounts payable at the time of redemption of the Series A Preferred Shares, shall be made net of any required U.S. income tax withholding. If a Holder is entitled to an (f) Without limiting the generality of the foregoing, if a Holder is a resident for tax purposes in the United States, engaged in the conduct of a trade or business in the United States, a disregarded entity (as defined in Treasury Regulation Section 301.7701-3 of the Code) owned by a resident of the United States, or otherwise subject to tax in the United States (each, a “U.S. Holder”), such U.S. Holder shall deliver to the Company duly completed copies of Internal Revenue Service Form W-9 certifying that such U.S. Holder is exempt from U.S. federal backup withholding tax. Any Holder who is not a U.S. Holder shall deliver to the Company whichever of the following is applicable: (i) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, claiming eligibility for benefits of an income tax treaty to which the United States is a party, (ii) duly completed copies of Internal Revenue Service Form W-8ECI, (iii) duly completed copies of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, W-8BEN, W-8BEN-E, Form W-9, or other certification documents, as applicable, or (iv) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit the Company to determine the withholding or deduction required to be made.

Dividends. (a) The holders of the outstanding Class A-1 Series A Preferred Stock (collectively the “Holders” and each a “Holder”) shall be entitled to receive, receive preferential dividends at a rate of $0.00135 per share of Series A Preferred Stock per annum out of any funds of the Corporation legally available thereforeunder all applicable law for such purpose, cumulative dividends at the annual rate but prior to and before any dividend or other distribution will be paid or declared and set apart for payment on any shares of 6% per annum of the per share purchase price any Junior Stock ($1.10) of the Class A-1 Preferred Stockdefined below). Such dividends shall compound annually and be fully cumulative, and shall accumulate from the date of original issuance of the Series A Preferred Stock, and shall be payable annually on the last day of each calendar year in shares arrears in cash (provided that if the last day of the Company’s Class A-1 Preferred Stock quarterlya calendar year is a Saturday, Sunday or legal holiday in New York, NY, then such dividend shall be payable, without interest for such additional day(s), on the fifteenth next day of Octoberthat is not a Saturday, January, April and July Sunday or legal holiday) (each of such dates being a the “Dividend Payment Date”). Dividends on Series A Preferred must be delivered and paid to the Holders not later than five (5) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading business days immediately preceding the after each specified Dividend Payment Date. Such . (b) The dividends shall accrue on each such share commencing on the date of issue, and Series A Preferred Stock shall accrue from day to day, be cumulative whether or not earned declared so that, if at any time full cumulative dividends at the rate aforesaid on all shares of the Series A Preferred Stock then outstanding from the date hereof to the end of the annual dividend period next preceding such time shall not have been paid or declared. Such dividends shall be cumulative so that declared and set apart for payment, or if such dividends in respect of the full dividend on all outstanding Series A Preferred Stock for any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before payment, the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares amount of the Corporation) deficiency shall be paid or the purchase declared and set apart for payment before any sum shall be set apart for or redemption of shares of the Corporation for cash or property (except for an exchange of shares of applied by the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time Corporation to the purchase, redemption or other acquisition of the Series A Preferred Stock or any shares of any other class of stock ranking on a parity with the Series A Preferred Stock and before any dividend or other distribution by way of dividend shall be paid or declared and set apart for payment on any Junior Stock and before any sum shall be set aside for or applied to the date of declaration thereof and the time purchase, redemption or other acquisition of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysJunior Stock.

Dividends. (a) The holders of No dividends or other distributions declared after the outstanding Class A-1 Preferred Effective Time on AFC Common Stock shall be entitled paid with respect to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in any shares of AFC Common Stock represented by an APY Stock Certificate until such APY Stock Certificate is surrendered for exchange according to the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) daysprocedures described above. All No fractional shares of common stock shall AFC Common Stock will be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees issued pursuant to the terms Merger. In lieu of the issuance of any employee incentive planfractional shares of AFC Common Stock, agreement or arrangement) including any cash will be paid to holders of such transfer, purchase or redemption by a subsidiary fractional share in the amount of the Corporation. The time product of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred such fractional share multiplied by the Corporation, whether or not pursuant Average Stock Price. THE RECAPITALIZATION APY is currently authorized to a contract issue only one class of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchangeAPY Common Stock. The Board of Directors may fix of APY has approved, and SMA, the holder of more than a record date majority of the 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 Merger, 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 remain outstanding after the determination Merger. See "The Charter Amendment" and "Appendix A-2--Form of holders 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 Merger Agreement and related agreements; (iii) authorized capital stock; (iv) ownership of Class A-1 Preferred Stock entitled to receive subsidiaries; (v) the lack 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; (vii) compliance with law and contract; (viii) the filing of certain documents with the Commission; (ix) the accuracy of financial statements; (x) the absence of certain litigation; (xi) the absence of certain changes including those having a material adverse effect, the payment of dividends other than regular quarterly cash dividends and a dividend declared thereonchange in accounting policy; (xii) the receipt of fairness opinions; and (xiii) the lack of any contract or agreement obligating the payment of finder's fees, which record date shall be brokerage or agent's commissions, other than agreements with Salomon Brothers and ▇▇▇▇▇▇▇ ▇▇▇▇▇. In addition, AFC represents that (i) immediately following the Effective Time, it will have available funds to satisfy the cash portion of the Merger Consideration; and (ii) to its knowledge, no more than sixty (60) days.event has occurred or condition exists in connection with the Merger that would cause it to fail to satisfy any material applicable statute or written regulation. CERTAIN COVENANTS Conduct of Business Pending the Reorganization. Pursuant to the Merger Agreement, AFC and APY have made various customary covenants relating to the Merger Transactions. APY has agreed that, prior to the 46

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Holders shall be entitled to receive, out of funds legally available therefore, cumulative receive dividends at the annual rate of 6% Dividend Rate per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock annum, compounded quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that from the Issue Date and shall be added daily to the Liquidation Preference. The dividends per share of Preferred Stock for any full quarterly period shall be computed by multiplying the Dividend Rate for such Dividend Period by the Liquidation Preference (determined as of the first day of such Dividend Period) per share and dividing the result by four. Dividends payable for any period less than a full quarterly Dividend Period shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed for any period less than one month. (b) In addition to the dividends specified in subparagraph 2(a) above, if dividends are declared or paid on the Common Stock, then such dividends in respect shall be declared and paid pro rata on the Common Stock and the Preferred Stock, treating each share of Preferred Stock as the greatest whole number of shares of Common Stock then issuable upon conversion thereof pursuant to paragraph 5 below. (c) So long as any previous quarterly dividend period shares of Preferred Stock shall be outstanding, the Corporation shall not have been paid on, the deficiency shall be fully paid on (i) declare or declared and set apart for such shares before the Corporation makes pay any dividend or make any distribution (as hereinafter defined) to the holders of Common on any Junior Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend in cash, property or otherwise (except a dividend other than dividends payable in shares of the Corporationclass or series upon which such dividends are declared or paid, or payable in shares of Common Stock with respect to Junior Stock for which an adjustment is made pursuant to subparagraph 5(e)(i) hereof) or (ii) purchase or redeem, or permit any Subsidiary to purchase or redeem any Junior Stock (except by conversion into or exchange solely for shares of Common Stock), or pay or make available any monies for a sinking fund for the purchase or redemption of any Junior Stock, other than up to 2,000,000 shares of Common Stock from employees of the Corporation for cash who are not directors or property (except for an exchange of shares executive officers of the Corporation or shares acquired by the Corporation from employees pursuant to the terms upon termination of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of employment with the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.

Dividends. (a) The holders Shares of the outstanding Class A-1 Series B Preferred Stock shall be entitled to receive, out of funds legally available therefore, cumulative accumulate dividends at the annual a rate of 66.50% per annum PER ANNUM; PROVIDED, that in the event that the Series B Shareholder Approval has not been obtained by the Corporation on or prior to the Anniversary Date, shares of Series B Preferred Stock shall accumulate dividends at a rate of 12.00% PER ANNUM from and after the per share purchase price ($1.10) Anniversary Date through the Approval Date. After the Approval Date, shares of the Class A-1 Series B Preferred StockStock shall accumulate dividends at a rate of 6.50% PER ANNUM. Such Payment of dividends shall be payable made in shares cash except as otherwise provided in this Article III. Dividends shall be paid in four equal quarterly installments on the last day of March, June, September and December of each year, or if any such date is not a Business Day, on the Business Day next preceding such day (each such date, regardless of whether any dividends have been paid or declared and set aside for payment on such date, a "DIVIDEND PAYMENT Date"), to holders of record (the "REGISTERED HOLDERS") as they appear on the stock record books of the Company’s Class A-1 Preferred Stock quarterly, Corporation on the fifteenth day of October, January, April and July (each of such dates being a “prior to the relevant Dividend Payment Date”) commencing ; PROVIDED, HOWEVER, that the Corporation may elect not to make any dividend payment due hereunder on any Dividend Payment Date (other than as required in connection with any redemption or repurchase of shares of Series B Preferred Stock or any liquidation, dissolution or winding up of the Corporation), and any such amount then due in respect of dividends shall constitute an Arrearage (as defined below). Dividends shall be paid only when, as and if declared by the Board of Directors out of funds at the time legally available for the payment of dividends. Dividends shall begin to accumulate on outstanding shares of Series B Preferred Stock from the date of issuance, issuance and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue deemed to accumulate from day to day, day whether or not earned or declareddeclared until paid. Such dividends Dividends shall be cumulative so that if such dividends accumulate on the basis of a 360-day year consisting of twelve 30-day months (four 90-day quarters) and the actual number of days elapsed in respect of the period for which payable. Dividends payable at more than one annual rate for any previous quarterly dividend period or partial dividend period shall not have been paid on, be pro rated on the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares basis of the Corporation) number of days in such dividend period or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive planpartial dividend period, agreement or arrangement) including any such transfercalculated as aforesaid, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time actual number of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange days elapsed for shares the time of the distribution is the date when the Corporation acquires the shares in which dividends are payable at each such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysannual rate.

Dividends. (a) The holders of the outstanding Class A-1 shares of Redeemable Preferred Stock shall be entitled to receivereceive cumulative dividends, out of funds legally available thereforetherefor, cumulative dividends at the annual a rate of 6% eleven percent (11%) per annum annum, before any dividend or distribution in cash or other property on common stock or any other class or series of stock of the per share purchase price Corporation shall be declared or paid or set apart for payment. ($1.10b) of Dividends on the Class A-1 Redeemable Preferred Stock. Such dividends shall be payable on March 31, June 30, September 30 and December 31 of each year until the Redeemable Preferred is redeemed in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July full or is otherwise no longer outstanding (each of such dates date being hereinafter individually a “Dividend Payment Date”) commencing ), except that if such date is a Saturday, Sunday or legal holiday then such dividend shall be payable on the date first immediately preceding calendar day which is not a Saturday, Sunday or legal holiday, to holders of issuance, and shall be pro-rated for record as they appear on the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average books of the closing bid prices for the Company’s common stock for the ten trading Corporation on such respective dates, not exceeding sixty (60) days immediately preceding the such Dividend Payment Date, as may be determined by the Board of Directors in advance of the payment of each particular dividend. Such Dividends in arrears may be declared and paid at any time, without reference to any 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 Redeemable Preferred for each dividend period shall accrue on each such share commencing be computed by dividing the annual rate of 11% by four. Dividends payable on the date Redeemable Preferred for the initial dividend period and for any other period less than a full quarterly period shall be computed and prorated on the basis of issuea 360-day year of twelve 30-day months. (c) If the Corporation is unable to pay a dividend on a Dividend Payment Date, the dividend shall be cumulative and shall accrue from day to dayand after the date of original issuance thereof, whether or not earned or declareddeclared by the Board of Directors. Such Accrued dividends shall bear interest at a rate of eleven percent (11%) per annum. (d) No cash dividend may be cumulative so that if such declared on any other class or series of stock ranking on junior to the Redeemable Preferred as to dividends in respect of any previous quarterly dividend period unless there shall not also be or have been declared and paid onon Redeemable Preferred accrued, unpaid dividends for all quarterly periods coinciding with or ending before such quarterly period, ratably in proportion to the respective annual dividend rates fixed therefor. (e) Dividends on the Redeemable Preferred shall be paid in cash. (f) Notwithstanding anything contained herein to the contrary, until the payment in full in cash of all of the Obligations (as defined in the Credit Agreement) owing under that certain Amended and Restated Credit Agreement dated as of May 31, 2013 (as amended, restated, supplemented, replaced, extended, refinanced in whole or in part or otherwise modified from time to time, the deficiency shall be fully paid on or declared “Credit Agreement”), by and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by among the Corporation, whether Fifth Third Bank, as Administrative Agent and a Lender, and the other Lenders from time to time party thereto, the Corporation shall not pay any cash dividends unless the following conditions are satisfied, in each case, both before and after giving effect to the payment of such cash Dividend: (i) no Default or not pursuant to a contract Event of an earlier date; provided that where a negotiable debt security is issued Default (each as defined in exchange for shares the time Credit Agreement) shall have occurred and be continuing, and (ii) the Corporation shall be in pro forma compliance with the covenants set forth in Section 6.20 of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysCredit Agreement.

Dividends. (a) The holders Subject to Section3(c), from and after the Initial Issue Date, dividends shall, with respect to each outstanding share of Series A Preferred Stock, accrue on the outstanding Class A-1 Accreted Value at the Dividend Rate for each Dividend Period (as defined below) to and including the next Dividend Payment Date. Dividends on the Series A Preferred Stock shall be entitled to receivenon-cumulative and shall accrue on a daily basis, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stockwhether or not declared. Such dividends shall be payable only when, as and if declared by the Board, and when so declared and paid, such dividends shall be paid in shares cash out of funds legally available therefor and shall be payable on the next Dividend Payment Date following such declaration by the Board to the Holders as they appear on the Corporation’s stock register at the Close of Business on the relevant Dividend Record Date. If any Dividend Payment Date falls on a day that is not a Business Day, payment of dividends declared under this Section 3(a) with respect to such Dividend Payment Date will be made on the next succeeding Business Day and no interest or dividends on such payment will accrue or accumulate, as the case may be, in respect of the Company’s Class A-1 Preferred Stock quarterlydelay. The period from the Initial Issue Date to and including July 31, on 2017 and each period from but excluding a Dividend Payment Date to and including the fifteenth day of October, January, April and July (each of such dates being following Dividend Payment Date is herein referred to as a “Dividend Payment DatePeriod.” (b) commencing on the date of issuance, If a cash dividend is not declared and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-onepaid in accordance with Section 3(a) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such , then in full discharge of any accrual of dividends shall accrue on for such Dividend Period, the Accreted Value of each such outstanding share commencing on the of Series A Preferred Stock, regardless of its date of issue, and shall accrue from day automatically increase on such Dividend Payment Date by an amount equal to day, whether the Dividend Rate multiplied by the Accreted Value in effect immediately after the immediately prior Dividend Payment Date (or not earned or declared. Such dividends shall be cumulative so that if such dividends the Initial Issue Date in respect of the first Dividend Period). (c) Dividends payable under Section 3(a) (or future dividends calculated in determining Change of Control Cash Price) and any previous increase in Accreted Value under Section 3(b) (or deemed increase in Accreted Value under Section 3(e)) for any period less than a full quarterly dividend or accretion 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. (d) Notwithstanding anything to the contrary in this Certificate of Designations, if at any time on or after [●], 2019 [insert date that is the 30-months after the Initial Issue Date], the Closing Sale Price of the Common Stock equals or exceeds 130% of the Conversion Price then in effect for at least 25 consecutive Trading Days, all shares of Series A Preferred Stock will permanently cease to be entitled to any dividends pursuant to Section 3(a) or any further accretion of Accreted Value pursuant to Section 3(b) (the “Dividend Termination Date”); provided, however, that with respect to the period commencing on the day following the last Dividend Payment Date prior to the Dividend Termination Date and ending on, and including, the Dividend Termination Date (the “Final Accrual Period”), a cash dividend may be declared and paid in such amount accrued with respect to the Final Accrual Period payable on the next Dividend Payment Date following the Final Accrual Period as determined and paid otherwise in accordance with Section 3(a), or if not declared and paid in accordance with the foregoing, the Accreted Value shall accrete in an amount accrued with respect to the Final Accrual Period on the next Dividend Payment Date following the Final Accrual Period as determined and accreted otherwise in accordance with Section 3(b). (e) Under this Certificate of Designations, in calculating either the (A) number of shares of Common Stock issued upon conversion of a share of Series A Preferred Stock or (B) redemption price per share of Series A Preferred Stock, the Accreted Value of each share of Series A Preferred Stock shall be increased by the amount of accrued and unpaid dividends during the then-current Dividend Period regardless of whether, at the time of such conversion or redemption, a dividend payable on the immediately succeeding Dividend Payment Date has been declared pursuant to Section 3(a). Holders of shares of Series A Preferred Stock subject to conversion or redemption shall not be entitled to receive any payment of dividends declared pursuant to Section 3(a) in respect of the Dividend Period in which the conversion or redemption occurs notwithstanding that a Dividend Record Date may have been paid onfixed for the payment of such dividends prior to such conversion or redemption. (f) The Series A Preferred Stock shall fully participate, the deficiency shall be fully paid on or an as-converted basis, in any dividend declared and set apart for such shares before paid or distribution on the Corporation makes Common Stock (other than any dividend paid or distribution (as hereinafter defined) to on the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” Stock in this section 5 means connection with the transfer of cash liquidation, winding up or property without consideration, whether by way of dividend or otherwise (except a dividend in shares dissolution of the Corporation) as if the Preferred Stock were converted into shares of Common Stock on the Record Date for such dividend or distribution, at the purchase or redemption Conversion Rate in effect on such Record Date. (g) Holders of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Series A Preferred Stock shall not be entitled to receive payment of a any dividend declared thereon, which record date shall be no more other than sixty (60) daysas set forth in this Section 3.

Dividends. (a) The holders Holders of the outstanding Class A-1 Preferred Stock a particular series of APS shall be entitled to receive, when, as and if declared by the Board of Trustees of the Trust, out of funds legally available thereforetherefor, cumulative dividends each consisting of cash at the annual rate Applicable Rate and no more, payable on the respective dates set forth below. Dividends on the shares of 6% per annum each series of APS 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 APS shall accumulate from the Date of Original Issue and shall be payable, when, as and if declared by the Board of Trustees of the per share purchase price ($1.10) Trust, out of funds legally available therefor, commencing on the Initial Dividend Payment Date. Following the Initial Dividend Payment Date for a series of APS, dividends on that series of APS will be payable, at the option of the Class A-1 Preferred Stock. Such dividends shall be payable in shares Trust, either (x) with respect to any 7-Day Dividend Period and any Short Term Dividend Period of the Company’s Class A-1 Preferred Stock quarterly35 or fewer days, on the fifteenth day next succeeding the last day thereof, or (y) 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 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 (x) or (y) being herein referred to as a “Normal Dividend Payment Date”), except that if such Normal Dividend Payment Date is not a Business Day, then the Dividend Payment Date shall be the first Business Day next succeeding such 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 APS is scheduled to begin on the same day and end on the same day as a Dividend Period for another series of APS, then the last day of Octobersuch Dividend Period for such other series of APS 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, Januaryif for any reason a Dividend Payment Date cannot be fixed as described above, April then the Board of Trustees of the Trust shall fix the Dividend Payment Date. However, no Dividend Period of any series of APS shall be co-extensive with any Dividend Period of any other series of APS 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 APS. 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 APS set forth in the Declaration of Trust or the Bylaws. The Initial Dividend Period, 7-Day Dividend Periods and July (each Special Dividend Periods with respect to a series of such dates being APS 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) commencing 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 date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately Business Day preceding the Dividend Payment Date. Such dividends 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 APS (the “Initial Dividend Period”), the Applicable Rate for such series of APS shall accrue be the Initial Dividend Rate. Commencing on the Initial Dividend Payment Date for a series of APS, 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 the Auction Procedures. For a series of APS, the Applicable Rate for such share 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 7-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 APS on the date set for such redemption, any amount of issueany 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 Trust has declared such dividend payable on such Dividend Payment Date to the Holders of such APS 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 APS not paid to such 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 (excluding any days that would have been Business Days but for the occurrence of any unforeseen event that caused such days not to be Business Days) divided by 365, and in such case such period shall accrue not constitute a Non-Payment Period; provided, however, that the Trust shall not be 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 definition of “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 APS 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 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 cash dividends per share of any series of APS payable (if declared) on the Initial Dividend Payment Date, each Dividend Payment Date of each 7-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 APS 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 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 APS 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 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 to 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 APS 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 APS. Upon receiving such Request for Special Dividend Period, the Broker-Dealer(s) shall jointly determine the Optional Redemption Price of the APS of the applicable series of APS 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 APS, (4) industry and financial conditions which may affect the APS of the applicable series, (5) the investment objective of the Trust, and (6) the Dividend Periods and dividend rates at which current and potential beneficial holders of the APS 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 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 provide a copy of such Notice of Special Dividend Period to Fitch Ratings, ▇▇▇▇▇’▇ and 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 Securities Depository on or prior to the Business Day prior to the relevant Auction Date if (x) either the 1940 Act APS Asset Coverage is not satisfied or the Trust shall fail to maintain both Fitch APS Asset Coverage and ▇▇▇▇▇’▇ APS Asset Coverage, 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 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 APS with an equal dividend period) or (y) sufficient funds for the payment of dividends payable on the immediately succeeding Dividend Payment Date have not been irrevocably deposited with the Auction Agent by the close of business on the third Business Day preceding the Auction Date immediately preceding such Dividend Payment Date. The Trust also shall provide a copy of 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 series of APS, the next succeeding Dividend Period for that series will be a 7-Day Dividend Period. In addition, in the event Sufficient Clearing Bids are not made in an Auction, or if an Auction is not held for any reason, such next succeeding Dividend Period will be a 7-Day Dividend Period and the Trust may not again give a Notice of Special Dividend Period for the APS (and any such attempted notice shall be null and void) until Sufficient Clearing Bids have been made in an Auction with respect to a 7-Day Dividend Period. If an Auction is not held because an unforeseen event causes 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 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 not earned APS, 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 declared. Such dividends sum of money in lieu of interest, shall be cumulative so that if such dividends payable in respect of any previous quarterly dividend period payment on the APS that may be in arrears. (ii) For so long as any APS are Outstanding, the Trust shall not have been paid ondeclare, the deficiency shall be fully paid on pay or declared and set apart for such shares before the Corporation makes payment any dividend or other distribution (as hereinafter defined) 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 beneficial interest, if any, ranking junior to the holders APS as to dividends or upon liquidation) in respect of the Common Stock. Accrued but unpaid Shares or any other shares of beneficial interest of the Trust ranking junior to or on a parity with the APS as to dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without considerationupon liquidation, whether by way of dividend or call for redemption, redeem, purchase or otherwise acquire for consideration any Common Shares or any other such junior shares (except a dividend in by conversion into or exchange for shares of the CorporationTrust ranking junior to the APS as to dividends and upon liquidation) or the purchase any other such Parity Shares (except by conversion into or redemption of shares exchange for stock of the Corporation for cash Trust ranking junior to or property on a parity with the APS as to dividends and upon liquidation), unless (except for an exchange of shares of A) immediately after such transaction, the Corporation Trust shall maintain both Fitch APS Asset Coverage and ▇▇▇▇▇’▇ APS Asset Coverage, and the Trust shall maintain the 1940 Act APS Asset Coverage, (B) full cumulative dividends on APS due on or shares acquired by the Corporation from employees pursuant prior to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof the transaction have been declared and the time of any distribution by purchase paid or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.have bee

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Holder shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available thereforefor the payment of dividends, cumulative dividends at the annual rate Dividend Rate on the Stated Value of 6% per annum each share of Series ___ Preferred Stock on and as of each Dividend Payment Due Date with respect to each Dividend Period. Dividends on the per share purchase price ($1.10) of the Class A-1 Series ___ Preferred Stock. Such dividends Stock shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on cumulative from the date of issue, and shall accrue from day to day, whether or not earned declared for any reason, including if such declaration is prohibited under any outstanding indebtedness or declaredborrowings of the Corporation or any of its Subsidiaries, or any other contractual provision binding on the Corporation or any of its Subsidiaries, and whether or not there shall be funds legally available for the payment thereof. (i) Each dividend shall be payable in equal quarterly amounts on each Dividend Payment Due Date, commencing October 31, 2004, to the Holders of record of shares of the Series ___ Preferred Stock, as they appear on the stock records of the Corporation at the close of business on such record date, not more than 60 days or less than 10 days preceding the payment dates thereof, as shall be fixed by the Board of Directors. Such Accrued and unpaid dividends for any past Dividend Period may be declared and paid at any time, without reference to any Dividend Payment Due Date, to Holders of record, not more than 15 days preceding the payment date thereof, as may be fixed by the Board of Directors. (ii) At the option of the Corporation, the dividend shall be paid either (x) in cash or (y) through the issuance of duly and validly authorized and issued, fully paid and nonassessable shares of the Common Stock valued at the Conversion Price, assuming for this purpose, that the applicable Dividend Payment Date is the applicable Conversion Date; provided, however, that if no funds are legally available for the payment of cash dividends on the Series ___ Preferred Stock, dividends shall be cumulative so that if such paid as provided in clause (y) above. (b) Except as provided in Section 4(d) hereof, the Holder shall not be entitled to any dividends in respect excess of the cumulative dividends, as herein provided, on the Series ___ Preferred Stock. (c) So long as any shares of the Series ___ Preferred Stock are outstanding, no dividends shall be declared or paid or set apart for payment or other distribution declared or made upon any of the Common Stock, nor shall any Common Stock be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of shares of Common Stock made for purposes of an employee incentive or benefit plan (including a stock option plan) of the Corporation or any Subsidiary) for any consideration by the Corporation, directly or indirectly, nor shall any moneys be paid to or made available for a sinking fund for the redemption of any previous quarterly dividend period shares of any Common Stock, unless in each case (i) the full cumulative dividends required to be paid in cash on all outstanding shares of the Series ___ Preferred Stock shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before payment for all past Dividend Periods with respect to the Series ___ Preferred Stock and (ii) sufficient funds shall have been paid or set apart for the payment of the dividend for the current Dividend Period with respect to the Series ___ Preferred Stock. (d) If the Corporation makes shall at any time or from time to time after the Issue Date declare, order, pay or make a dividend or other distribution (including, without limitation, any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash stock or other securities or property without consideration, whether or rights or warrants to subscribe for securities of the Corporation or any of its Subsidiaries by way of dividend or otherwise (except a dividend in spin-off) on shares of its Common Stock, then, and in each such case, in addition to the Corporation) or the purchase or redemption of shares dividend obligation of the Corporation for cash or property (except for an exchange of shares of specified in Section 4(a) hereof, the Corporation shall declare, order, pay and make the same dividend or shares acquired by the Corporation from employees pursuant distribution to each Holder of Series ___ Preferred Stock as would have been made with respect to the terms number of any employee incentive planCommon Shares the Holder would have received had it converted all of its Series D Preferred Shares, agreement immediately prior to such dividend or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysdistribution.

Dividends. (ai) The holders of the outstanding Class A-1 Preferred Stock E Shares shall not be entitled to receiveany dividends by virtue of their holding of any Class E Shares and the Board shall not declare any dividends on the Class E Shares. (ii) The holders of the Class C Shares shall only be entitled to receive and the corporation shall only be obligated to pay such dividends as the Board may declare, out of funds legally available therefore, cumulative provided that such dividends at the annual rate of 6% shall not exceed in any one fiscal year SIXTEEN (16%) PERCENT per annum of the per share purchase price Redemption Amount ($1.10as herein defined) of each Class C Share held. If the Board has declared a dividend on the Class C Shares for any fiscal year, no dividend shall be declared or paid or set aside for payment for any class of shares ranking junior to the Class C Shares for that fiscal year until the dividend declared on the Class C Shares is paid or set apart for payment. The holders of the Class A-1 Preferred Stock. Such C Shares shall not be entitled to any dividends other than or in excess of the dividends herein provided for, and if the Board does not declare a dividend for that fiscal year for the Class C Shares, then the rights of the holders of the Class C Shares to any dividend for such fiscal year shall be forever extinguished. (iii) The holders of the Class D Shares shall only be entitled to receive and the corporation shall only be obligated to pay such dividends as the Board may declare, provided that such dividends shall not exceed in any one fiscal year SIXTEEN (16%) PERCENT per annum of the Redemption Amount (as herein defined) of each Class D Share held. If the Board has declared a dividend on the Class D Shares for any fiscal year, no dividend shall be payable declared or paid or set aside for payment for any class of shares ranking junior to the Class D Shares for that fiscal year until the dividend declared on the Class D Shares is paid or set apart for payment. The holders of the Class D Shares shall not be entitled to any dividends other than or in excess of the dividends herein provided for, and if the Board does not declare a dividend for that fiscal year for the Class D Shares, then the rights of the holders of the Class D Shares to any dividend for such fiscal year shall be forever extinguished. (iv) The holders of the Class F Shares shall only be entitled to receive and the corporation shall only be obligated to pay such dividends as the Board may declare, provided that such dividends shall not exceed in any one fiscal year SIXTEEN (16%) PERCENT per annum of the Redemption Amount (as herein defined) of each Class F Share held. If the Board has declared a dividend on the Class F Shares for any fiscal year, no dividend shall be declared or paid or set aside for payment for any class of shares ranking junior to the Class F Shares for that fiscal year until the dividend declared on the Class F Shares is paid or set apart for payment. The holders of the Class F Shares shall not be entitled to any dividends other than or in excess of the dividends herein provided for, and if the Board does not declare a dividend for that fiscal year for the Class F Shares, then the rights of the holders of the Class F Shares to any dividend for such fiscal year shall be forever extinguished. (v) The Board may at any time declare a dividend on the issued and outstanding Class C, Class D or Class F Shares without declaring any dividend or a dividend in the same amount on the issued and outstanding shares of any other class of shares. (vi) Subject to subsections 3(b)(ii), (iii) and (iv) the Board may at any time declare a dividend on the issued and outstanding Class A or Class B Shares without declaring any dividend or a dividend in the same amount on the issued and outstanding shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day other class. No declaration or payment of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and any dividend shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) made to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” any Class A or Class B Shares if there are reasonable grounds for the Board to believe that: (A) the corporation is, or would after the payment be, unable to pay its liabilities as they become due, or (B) the declaration or payment of such dividend would result in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares realizable value of the Corporation) or the purchase or redemption of shares assets of the Corporation for cash or property (except for an exchange of shares of corporation being reduced to less than the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) days.aggregate of

Dividends. (a) The During the Interim Period, neither REIT I nor REIT II shall make, declare or set aside any dividend or other distribution to its respective stockholders without the prior written consent of the other Party; provided, however, that the written consent of the other Party shall not be required for the authorization and payment of quarterly distributions in the ordinary course of business at a rate not in excess of the regular quarterly cash dividend most recently declared prior to the date of this Agreement with respect to each of the shares of REIT I Common Stock and shares of REIT II Common Stock, respectively (each, a “Quarterly Dividend”); it being agreed that the timing of any such Quarterly Dividends will be coordinated so that, if either the holders of shares of REIT I Common Stock or the outstanding Class A-1 Preferred holders of shares of REIT II Common Stock receives a distribution for a particular quarter prior to the Closing Date, then the holders of shares of REIT II Common Stock and the holders of shares of REIT I Common Stock, respectively, shall receive a distribution for such quarter prior to the Closing Date; provided, further that the record and payment dates for REIT I and REIT II’s Quarterly Dividends pursuant to this Section 7.8 shall be the same as the other Party’s record and payment dates, which shall be consistent with REIT I’s historical record dates and payment dates unless otherwise agreed between the Parties, in order to ensure that the stockholders of REIT I and the stockholders of REIT II receive the same number of such dividends prior to the REIT Merger Effective Time. (b) In the event that the Closing Date is expected to occur prior to the end of the then-current dividend period of REIT I or REIT II, as the case may be, then each of REIT I and REIT II shall declare and pay a dividend to the holders of shares of REIT I Common Stock and the holders of shares of REIT II Common Stock, respectively (each, a “Closing Dividend”), the record date and payment date (to the extent practicable) for which shall be the close of business on the last Business Day prior to the Closing Date (the “Closing Dividend Date”), in each case, subject to funds being legally available therefor. The per share amount of the Closing Dividend payable by REIT I with respect to the shares of REIT I Common Stock shall be an amount equal to (A) REIT I’s Quarterly Dividend, multiplied by (B) a fraction, the numerator of which is the number of days lapsed from the first day of the then-current dividend period through and including the Closing Dividend Date, and the denominator of which is the actual number of days in the calendar quarter in which such dividend is declared. The per share amount of the Closing Dividend payable by REIT II with respect to the shares of REIT II Common Stock shall be an amount equal to (A) REIT II’s Quarterly Dividend, multiplied by (B) a fraction, the numerator of which is the number of days lapsed from the first day of the then-current dividend period through and including the Closing Dividend Date, and the denominator of which is the actual number of days in the calendar quarter in which such dividend is declared. (c) Notwithstanding the foregoing or anything else to the contrary in this Agreement, each of REIT I and REIT II, as applicable, shall be permitted to declare and pay a dividend to its stockholders, the record date and payment date for which shall be the close of business on the last Business Day prior to the Closing Date, distributing any amounts determined by such Party (in each case in consultation with the other party) to be the minimum distributions including under Sections 858 or 860 of the Code, reasonably necessary for such Party to maintain its status as a REIT under the Code and avoid or reduce the imposition of any entity-level income or excise Tax under the Code (any dividend paid pursuant to this paragraph, a “REIT Dividend”). If either REIT I or REIT II determines that it is necessary to declare a REIT Dividend, it shall notify the other Party at least twenty (20) days prior to the expected Closing Date, and such other Party shall be entitled to receive, out of funds legally available therefore, cumulative dividends at the annual rate of 6% per annum of the declare a dividend per share purchase price payable ($1.10i) of the Class A-1 Preferred Stock. Such dividends shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given dateREIT I, the average to holders of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such REIT I Common Stock, in an amount per share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) REIT I Common Stock equal to the product by multiplying (x) the REIT Dividend declared by REIT II with respect to each share of REIT II Common Stock by (y) the Exchange Ratio and (ii) in the case of REIT II, to holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of REIT II Common Stock, in an amount per share of REIT II Common Stock equal to the Corporation quotient by dividing (x) the REIT Dividend declared by REIT I with respect to each share of REIT I Common Stock by (y) the Exchange Ratio. The record date and payment date for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees any REIT Dividend payable pursuant to the terms of any employee incentive plan, agreement or arrangementthis Section 7.8(c) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date close of declaration thereof and business on the time of any last Business Day prior to the Closing Date. (d) REIT I Operating Partnership or REIT II Operating Partnership, as the case may be, may make a distribution by purchase with respect to the REIT I OP Units or redemption of shares shall be the day cash or property is transferred by the CorporationREIT II OP Units, whether or not pursuant respectively, in order to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date distribute funds sufficient for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysforegoing dividends.

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Holders shall be entitled to receive, with respect to each share of Preferred Stock, out of funds of the Company legally available thereforefor payment, cumulative cash dividends (“Cash Dividends”) on the Accrued Value in effect on the Dividend Record Date, computed on the basis of a 360-day year consisting of twelve 30-day months, at the annual rate of 6% per annum of the per share purchase price ($1.10) of the Class A-1 Preferred Stock. Such dividends shall be Dividend Rate, payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends Cash Dividends shall accrue be payable in arrears on each Dividend Payment Date for the applicable Dividend Period, to the Holders as they appear on the Company’s stock register at the Transfer Agent 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 applicable Dividend Period until Cash Dividends are paid pursuant to this Section 3(a) in respect of such share commencing Accrued Dividends or pursuant to Sections 3(b), 3(c) and 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. (b) Notwithstanding anything to the contrary in Section 3(a), the Company may, at its sole election, elect with respect to the Accrued Dividends for any Dividend Period (a “Non-Cash Dividend Election”) to increase the Accrued Value by the Dividend Rate (decreased proportionately to the extent of any cash paid in respect of such Accrued Dividend for such Dividend Period (e.g., if 25% of the Accrued Dividends for such Dividend Period is paid in cash, the rate would be reduced by 1.0% to 3.0%)) in lieu of paying such Accrued Dividends in cash (in part or in full), such increase to be effective at the Opening of Business on the day following the last day of such Dividend Period. If the Company fails to pay a Cash Dividend in respect of the Accrued Dividends for any Dividend Period, in whole or in part, on or prior to the respective Dividend Payment Date 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 solely with respect to and to the extent of such portion of such Accrued Dividends for such Dividend Period as to which a Cash Dividend is not paid. To the extent any Holder shall become liable for or subject to any taxes, levies, imposts, duties, fees, assessments, withholding or other charges of whatever nature resulting from any adjustment to the Accrued Value pursuant to this Section 3(b), the Company shall promptly indemnify and hold harmless such Holder against any such amounts at the highest maximum combined marginal federal, state and local income tax rates to which any such Holder may be subject Any Non-Cash Dividend Election as to any Dividend Period shall be effective only if notice thereof is delivered to holders of Preferred Stock prior to the last day of such Dividend Period. (c) Notwithstanding anything to the contrary herein, (x) if any shares of Preferred Stock are converted into Common Stock on a Conversion Date in accordance with this Certificate of Designations during the period between the last day of a Dividend Period and the Close of Business on the corresponding Dividend Payment Date and the Company has not made a Non-Cash Dividend Election in respect of such Dividend Period, then the amount of the Accrued Dividends in respect of such Dividend Period shall be added to the Accrued Value for purposes of such conversion; and (y) if any shares of Preferred Stock are converted into Common Stock in accordance with this Certificate of Designations on a Conversion 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, at the Company’s option, shall either (i) be paid in cash on or prior to the date of issuesuch conversion or (ii) not be paid in cash and be added to the Accrued Value for purposes of such conversion. For the avoidance of doubt, such Accrued Dividends shall include dividends accruing from, and shall accrue from including, the last day to dayof the most recently preceding Dividend Period to, whether or but not earned or declaredincluding, the applicable Conversion Date. Such dividends The Holders at the Close of Business on a Dividend Record Date shall be cumulative so that if entitled to receive any dividend paid as a Cash Dividend on those shares on the corresponding Dividend Payment Date. (d) 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 Accrued Dividends have been paid (including by way of an increase to the Accrued Value in accordance with Section 3(b)) and no such dividends dividend or distribution or redemption or repurchase shall be paid or payable in cash for any period unless the Preferred Stock has been paid full Cash Dividends in respect of any previous quarterly dividend period the same period; provided, however, that the foregoing limitation shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution apply to (as hereinafter definedi) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend payable on Common Stock or other Junior Stock in shares of Common Stock or other Junior Stock, (ii) the Corporation) or the purchase or redemption acquisition of shares of the Corporation for cash Common Stock or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued other Junior Stock in exchange for shares of Common Stock or other Junior Stock and the time 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. Notwithstanding the preceding, if full cash dividends have not been paid on the Preferred Stock and any Parity Stock, cash dividends may be declared and paid on the Preferred Stock and such Parity Stock only so long as the cash dividends are declared and paid pro rata so that amounts of cash dividends declared and paid per share on the Preferred Stock and such Parity Stock shall in all cases bear to each other the same ratio that the Accrued Dividends per share on the shares of Preferred Stock and the accumulated and unpaid dividends on such other Parity Stock bear to each other. (e) The Company shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock (other than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required in this Certificate of Designation or the Company’s certificate of incorporation) the Holders of shares of Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Preferred Stock in an amount at least equal to the sum of (i) the amount of the distribution aggregate Accrued Dividends then accrued on such share of Preferred Stock and not previously paid and (ii) (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Preferred Stock as would equal the date when product of (1) the Corporation acquires dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Preferred Stock, in such exchange. The Board of Directors may fix a each case calculated on the record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment such dividend or (B) in the case of a dividend declared thereonon any class or series that is not convertible into Common Stock, which record date at a rate per share of Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Accrued Value; provided that if the Company declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Company, the dividend payable to the Holders pursuant to this Section 3 shall be no more than sixty (60) dayscalculated based upon the dividend on the class or series of capital stock that would result in the highest Preferred Stock dividend.

Dividends. (a) The holders Subject to the prior preferences and other rights of any Senior Stock as to dividends, the outstanding Class A-1 recordholders of Series B-2 Preferred Stock shall be entitled to receivereceive dividends if, when and as declared by the Board of Directors of this corporation, out of funds legally available therefore, cumulative for payment of dividends. Such dividends shall by the corporation be payable in cash at the annual rate of 6% seven percent (7%) per annum of the per share purchase price Series B-2 Liquidation Preference. ($1.10b) Dividends on shares of Series B-2 Preferred Stock shall be payable annually in arrears when and as declared by the Board of Directors of this corporation on each anniversary of the Class A-1 Preferred StockSeries B-2 Initial Issue Date (a "Series B-2 Dividend Payment Date"), commencing on June 16, 1998. Such If any Series B-2 Dividend Payment Date occurs on a day that is not a Business Day, any accrued dividends otherwise payable on such Series B-2 Dividend Payment Date shall be paid on the next succeeding Business Day. Dividends shall be paid to the holders of record of the Series B-2 Preferred Stock as their names shall appear on the share register of the corporation on the Record Date for such dividend. Dividends payable in any Series B-2 Dividend Period which is less than a full Series B-2 Dividend Period in length will be 57 115 computed on the basis of a 365 day Series B-2 Dividend Period and actual days elapsed in such Series B-2 Dividend Period. Dividends on account of arrears for any past Series B-2 Dividend Periods may be declared and paid at any time to holders of record on the Record Date therefor. (c) So long as any shares of Series B-2 Preferred Stock shall be outstanding, the corporation shall not (except as provided in Section 4.3) declare, pay or set apart for payment on any Junior Stock any dividends whatsoever, whether in cash, property or otherwise (other than dividends payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether class or not earned or declared. Such dividends shall be cumulative so that if series upon which such dividends in respect of any previous quarterly dividend period shall not have been paid onare declared or paid, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend payable in shares of Common Stock with respect to Junior Stock other than Common Stock, together with cash in lieu of fractional shares), nor shall this corporation make any distribution on any Junior Stock, nor shall any Junior Stock be purchased, redeemed or otherwise acquired by this corporation or any of its subsidiaries of which it owns not less than a majority of the Corporation) outstanding voting power, nor shall any monies be paid or made available for a sinking fund for the purchase or redemption of any Junior Stock, unless all dividends to which the holders of Series B-2 Preferred Stock shall have been entitled for all previous Series B-2 Dividend Periods shall have been paid or declared and a sum of money sufficient for the payment thereof has been set apart. (d) In the event that full dividends are not paid or made available to the holders of all outstanding shares of Series B-2 Preferred Stock and of any Parity Stock and funds available for payment of dividends shall be insufficient to permit payment in full to holders of all such stock of the Corporation full preferential amounts to which they are then entitled, then the entire amount available for cash or property payment of dividends shall be distributed ratably among all such holders of Series B-2 Preferred Stock and of any Parity Stock in proportion to the full amount to which they would otherwise be respectively entitled. (except for an exchange of e) Notwithstanding anything contained herein to the contrary, no dividends on shares of the Corporation or shares acquired Series B-2 Preferred Stock shall be declared by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix of this corporation or paid or set apart for payment by this corporation at such time as the terms and provisions of any agreement of this corporation, 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 record date for the determination of holders of Class A-1 Preferred Stock entitled to receive breach thereof or a default thereunder, or if such declaration or payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysrestricted or prohibited by law.

Dividends. (a) The holders of the outstanding Class A-1 Preferred Stock Holders shall be entitled to receive, out of funds legally available thereforetherefor, and the Company shall pay, cumulative dividends at the annual rate of 6% per annum share (as a percentage of the original $10,000 Stated Value per share purchase price ($1.10share) of 4% (the Class A-1 "DIVIDEND RATE") per annum, payable on each Conversion Date (as defined herein) for such share and on each June 30 and December 31 for so long as such Preferred Stock. Such dividends Stock shall be payable outstanding, commencing December 31, 1999 (each of a Conversion Date and such semi-annual dates are referred to herein as a "DIVIDEND PAYMENT DATE"), in cash or shares of Common Stock (as defined in Section 7). Subject to the terms and conditions herein, the decision whether to pay dividends hereunder in Common Stock or cash shall be at the discretion of the Company’s Class A-1 . Dividends on the Preferred Stock quarterly, shall be calculated on the fifteenth basis of a 360-day of Octoberyear, January, April and July (each of such dates being a “Dividend Payment Date”) shall accrue daily commencing on the date of issuanceOriginal Issue Date (as defined in Section 7), and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall deemed to accrue from day to day, such date whether or not earned or declareddeclared and whether or not there are profits, surplus or other funds of the Company legally available for the payment of dividends. Such 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 cumulative distributed ratably among the Holders based upon the number of shares of Preferred Stock held by each Holder. Any dividends to be paid in cash hereunder that are not paid within three (3) Trading Days (as defined in Section 7) following a Dividend Payment Date shall continue to accrue and shall entail a late fee, which must be paid in cash, at the rate of 18% per annum or the lesser rate permitted by applicable law (such fees to accrue daily, from the date such dividend is due hereunder through and including the date of payment). The Company shall provide the Holders written notice of its intention to pay dividends in cash not less than ten (10) days prior to each Dividend Payment Date for so long as shares of Preferred Stock are outstanding (the Company may indicate in such notice the maximum amount of cash dividends that if it intends to pay during such period). Failure to timely provide such notice shall be deemed an election by the Company to pay dividends for such period in shares of Common Stock pursuant to the terms hereof. (b) Notwithstanding anything to the contrary contained herein, the Company must pay dividends in cash if: (i) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes is insufficient to pay such dividends in respect shares of Common Stock; (ii) after the Dividend Effectiveness Date (as defined in Section 7), Underlying Shares (as defined in Section 7) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement (as defined in Section 7) or (y) may not be sold without volume restrictions pursuant to Rule 144 promulgated under the Securities Act (as defined in Section 7), as determined by counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent in the form and substance acceptable to the applicable Holder and such transfer agent (if the Company is permitted and elects to pay dividends in shares of Common Stock under this clause (ii) prior to the Dividend Effectiveness Date and thereafter an Underlying Shares Registration Statement shall be declared effective by the Commission (as defined in Section 7), the Company shall, within three (3) Trading Days after the date of such declaration of effectiveness, exchange such Underlying Shares for shares of Common Stock that are free of restrictive legends of any previous quarterly kind); (iii) the Common Stock is not then listed or quoted on the Nasdaq National Market ("NASDAQ"), or on the New York Stock Exchange, American Stock Exchange or Nasdaq SmallCap Market (each, a "SUBSEQUENT MARKET"); (iv) the Company has failed to timely satisfy its conversion obligations hereunder; or (v) the issuance of the Underlying Shares issuable as payment of such dividend period would result in a violation of Section 5(a)(iii) or the rules of the Nasdaq Stock Market or any other rules and regulations governing any Subsequent Market on which the Common Stock is then listed or quoted for trading. (c) So long as any Preferred Stock shall not have been paid onremain outstanding, neither the deficiency Company nor any subsidiary thereof shall be fully paid on redeem, purchase or declared and set apart for such shares before otherwise acquire directly or indirectly any Junior Securities (as defined in Section 7), nor shall the Corporation makes Company directly or indirectly pay or declare any dividend or make any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of other than a dividend or otherwise (except a dividend distribution described in shares Section 5 or dividends due and paid in the ordinary course on preferred stock of the CorporationCompany at such times when the Company is in compliance with its payment and other obligations hereunder) upon, nor shall any distribution be made in respect of, any Junior Securities, nor shall any monies be set aside for or applied to the purchase or redemption (through a sinking fund or otherwise) of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation any Junior Securities or shares acquired by pari passu with the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysStock.

Dividends. Dividends on each Series G Preferred Share shall be cumulative and shall accrue at the 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) The holders 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 outstanding Class A-1 payment of dividends. Holders of Series G Preferred Stock Shares shall be entitled to receive, receive dividends from time to time out of funds any assets of the Corporation legally available therefore, cumulative for the payment of dividends at the annual rate Dividend Rate per share, when, as, and if declared by the Board of 6% per annum Directors. [Signature Page to Statement of Designation for Series G Preferred Shares] Table of Contents Dividends, to the per share purchase price ($1.10) extent declared to be paid by the Corporation in accordance with this Statement of the Class A-1 Preferred Stock. Such dividends Designation, shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, paid quarterly on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such 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 next Dividend Payment Date for such Dividend Period, and dividends shall accrue on each such share commencing accumulated dividends at the Dividend Rate. If any Dividend Payment Date otherwise would fall on the a date of issuethat is not a Business Day, and shall accrue from day to day, whether or not earned or declared. Such declared dividends shall be cumulative so that if such dividends in respect paid on the immediately succeeding Business Day without the accumulation of any previous quarterly dividend period shall not have been paid on, additional dividends. Dividends on the deficiency Series G Preferred Shares shall be fully paid payable based on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders a 360-day year consisting of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the twelve 30-day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysmonths.

Dividends. (a) The holders of the outstanding Class A-1 Series B Preferred Stock (collectively, the "Holders") shall not be entitled to receive dividends unless, within six (6) months following the date of issuance of the Series B Preferred Stock to the Holders (the "Amendment Date"), the Company has not amended its certificate of incorporation in order to authorize a sufficient number of shares of Common Stock into which all of the issued and outstanding shares of Series B Preferred Stock may be converted. In the event the Company does not make such an amendment by the Amendment Date, the Holders shall be entitled to receive, out of funds legally available therefore, receive cumulative dividends per share at the annual rate of 6% eight percent (8%) per annum of the per share purchase price Per Share Liquidation Preference ($1.10) as defined below), which shall accrue daily from the date of issuance of the Class A-1 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 with respect to Junior Securities and shall be equal, if not greater, in shares amount to any such dividend on a per share basis; and (ii) on parity with any dividend with respect to the Parity Securities and at an amount equal to the dividend on a per share basis received by the holders of the Company’s Class A-1 Preferred Stock quarterlyParity Securities. (b) Any and all dividends shall be payable out of any cash legally available therefor, on and if there is not a sufficient amount of cash available, then out of the fifteenth day remaining assets of October, January, April and July the Company legally available therefor (each of such dates being a “Dividend Payment Date”) commencing valued at the fair market value thereof on the date of issuancepayment, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declared. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall not have been paid on, the deficiency shall be fully paid on or declared and set apart for such shares before the Corporation makes any distribution (as hereinafter defined) to the holders of Common Stock. Accrued but unpaid dividends shall not bear interest. “Distribution” in this section 5 means the transfer of cash or property without consideration, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired determined by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be the day cash or property is transferred by the Corporation, whether or not pursuant to a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date of the Company); provided, however, that to the extent funds or assets are not legally available for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereonany dividend, which record date then the Company shall be no more than sixty (60) dayspay such unpaid dividends promptly as funds or assets become legally available therefor.

Dividends. (a) The holders of the then outstanding Class A-1 shares of Series C Preferred Stock shall will be entitled to receive, receive out of funds of the Company legally available therefore, cumulative dividends accruing on a daily basis from the Original Issuance Date (as hereinafter defined) through and including the date on which such dividends are paid at the annual rate of 610% per annum of (the per share purchase price ($1.10"Applicable Rate") of the Class A-1 Liquidation Preference (as hereinafter defined) per share of the Series C Preferred Stock. Such dividends , payable on each March 31, June 30, September 30 and December 31, commencing on June 30, 2003 (each such date, a "Dividend Payment Date") and calculated in accordance with Section 3(d); provided that: (i) if any such Dividend Payment Date is not a Business Day then such dividend shall be payable in shares of the Company’s Class A-1 Preferred Stock quarterly, on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuancenext Business Day, and shall be pro-rated (ii) accumulated and unpaid dividends for the first such any prior quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall may be valued paid at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing on the date of issue, and shall accrue from day to day, whether or not earned or declaredany time. Such dividends shall be cumulative so that if such dividends in respect of any previous quarterly dividend period shall whether or not have been paid on, the deficiency shall be fully paid on earned or declared and set apart whether or not there are profits, surplus or other funds of the Company legally available for such the payment of dividends. The term "Original Issuance Date" means March [27], 2003. 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 before the Corporation makes any distribution of Series C Preferred Stock (as hereinafter definedincluding fractional shares) having an aggregate Liquidation Preference equal to the amount 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 of Common Stock. Accrued thereof based upon the aggregate accrued but unpaid dividends shall not bear intereston the shares held by each such holder. “Distribution” in If and when any shares are issued under this section 5 means Section 3(a) for the transfer payment of cash or property without considerationaccrued dividends, whether by way of dividend or otherwise (except a dividend in shares of the Corporation) or the purchase or redemption of shares of the Corporation for cash or property (except for an exchange of shares of the Corporation or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary of the Corporation. The time of any distribution by way of dividend shall be the date of declaration thereof and the time of any distribution by purchase or redemption of shares shall be validly issued and outstanding and fully paid and nonassessable. For all purposes hereunder, dividends on the day cash or property is transferred by Series C Preferred Stock shall be treated as if the Corporationsame were paid on the relevant Dividend Payment Date, whether or not 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 accrue and be cumulative from the Dividend Payment Date in respect of which such shares were scheduled to be paid pursuant to this Section 3(a) as a contract of an earlier date; provided that where a negotiable debt security is issued in exchange for shares the time of the distribution is the date when the Corporation acquires the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysdividend.

Dividends. (a) The holders Holders of the outstanding Class A-1 shares of Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds of the Company legally available thereforefor payment, cumulative dividends in cash at the annual rate of 6% per annum of Dividend Rate. To the per share purchase price ($1.10) of extent that the Class A-1 Preferred Stock. Such dividends shall be payable in shares of Company is legally permitted to pay dividends, the Company’s Class A-1 Preferred Stock quarterly, Board of Directors shall declare and the Company shall pay dividends in cash on the fifteenth day of October, January, April and July (each of such dates being a “Dividend Payment Date”) commencing on the date of issuance, and shall be pro-rated for the first such quarterly period if the same is less than 91 (ninety-one) days. All shares of common stock shall be valued at the Fair Market Value thereof. As used herein Fair Market Value shall mean in the case of stock on a given date, the average of the closing bid prices for the Company’s common stock for the ten trading days immediately preceding the Dividend Payment Date. Such dividends shall accrue on each such share commencing Dividends on the date of issuePreferred Stock shall be payable quarterly in arrears at the Dividend Rate, and shall accrue from day to dayaccumulate, whether or not earned or declared. Such , 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 cumulative so that if funds of the Company legally available for the payment of such dividends in respect or the Company declares the payment of any previous quarterly dividend period shall not have been paid ondividends), the deficiency and shall be fully paid in cash. Dividends shall be payable in arrears on or declared and set apart for such shares before the Corporation makes any distribution each Dividend Payment Date (as hereinafter definedcommencing on August 15, 2015) to the holders of Common Stockrecord of Preferred Stock as they appear on the Company’s stock register at the close of business on the relevant Dividend Record Date. Accrued but unpaid Accumulations of dividends on shares of Preferred Stock for any past Dividend Periods may be declared and paid at any time to holders of record of Preferred Stock not more than 30 nor less than 10 calendar days immediately preceding any Dividend Payment Date and shall not bear interest. “Distribution” in this section 5 means The Company shall provide not less than 20 Scheduled Trading Days’ notice prior to any such Dividend Payment Date. Dividends payable for any period less than a full quarterly Dividend Period (based upon the transfer number of cash days elapsed during the period) shall be computed on the basis of a 360-day year consisting of twelve 30-day months. (b) No dividend shall be declared or property without considerationpaid upon, whether by way or any sum set apart for the payment of dividends upon, any outstanding share of the 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 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 otherwise (except a dividend 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 Corporationredemption 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 redemption acquisition. 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. (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 Corporation for cash required payment will be on the next succeeding Business Day and no interest or property dividends on such payment will accrue or accumulate as the case may be, in respect of the delay. (except for an exchange f) The Holders of shares of Preferred Stock at the Corporation 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 Section 9 following such Dividend Record Date or shares acquired by the Corporation from employees pursuant to the terms of any employee incentive plan, agreement or arrangement) including any such transfer, purchase or redemption by a subsidiary Company’s default in payment of the Corporationdividend due on such Dividend Payment Date. The time of any distribution by way of dividend Except as provided in Sections 9, 10 and 11, the Company shall be the date of declaration thereof and the time of any distribution by purchase make no payment or redemption of shares shall be the day cash or property is transferred by the Corporationallowance for unpaid dividends, whether or not pursuant to a contract in arrears, on converted shares of an earlier date; provided that where a negotiable debt security is issued in exchange Preferred Stock or for shares the time of the distribution is the date when the Corporation acquires dividends on the shares in such exchange. The Board of Directors may fix a record date for the determination of holders of Class A-1 Preferred Common Stock entitled to receive payment of a dividend declared thereon, which record date shall be no more than sixty (60) daysissued upon conversion.