Common use of Dividends Clause in Contracts

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

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

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

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

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

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

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

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

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

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

Dividends. (ai) Holders of shares of Series A Preferred Stock The Holder(s) shall be entitled to cumulative dividends receive, on the each share of Series A B Preferred Stock payable semiannuallyStock, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofDirectors, out of the assets of the Company any funds legally available thereforfor the payment of dividends, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not cumulative cash dividends at a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum equal to 8.0% of 6% per share on the Liquidation PreferencePreference (the “Dividend Rate”) in accordance with subdivisions 1, 2 and 3 of Article FOURTH of the Certificate of Incorporation; provided thatprovided, however, that in the event that on any Dividend Payment DateDate there shall be accrued and unpaid dividends for any prior Dividend Period, the Company is not permitted to declare or pay such dividend or incur such liability either Dividend Rate shall equal 8.0% per annum of the sum of (x) as a matter of law or the Liquidation Preference and (y) under the terms amount of all such accrued and unpaid dividends for any loan agreementprior Dividend Periods. (ii) Dividends will accrue and cumulate from the Issue Date and are payable quarterly in arrears on the first day of January, credit agreementApril, guarantyJuly and October (each, or related agreement, such dividend (a “Deferred DividendDividend Payment Date”) shall ), commencing on the first Dividend Payment Date following the Issue Date. If a Dividend Payment Date falls on a day that is not be declared by a Business Day, the Board of Directors, shall not dividends will be paid or payable on such the next Business Day as if it were paid on the Dividend Payment Date and no liability shall interest will accrue in connection therewith. (iii) The amount of dividends payable for each full quarterly Dividend Period will be incurred in respect thereof, and instead, such Deferred computed by dividing the 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)Rate by four. The amount of dividends payable for the initial Dividend Period, or any other period that is Dividend Period shorter or longer than a full semiannual dividend period quarterly Dividend Period, will be computed on the basis of the actual number of days elapsed during such Dividend Period over a 360-day year consisting of twelve 30-day months. Commencing on and following year. (iv) Dividends will be paid to the Meeting End Date, Holder(s) as such Holder(s) appear in the event that dividends are paid records of the Corporation at the Close of Business on shares the 15th day of Common Stock the immediately preceding calendar month in any dividend period with respect to which the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a applicable Dividend Payment Date is falls (the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(aThe Dividend Record Date shall apply regardless of whether any particular Dividend Record Date is a Business Day. (v) Dividends on any share of Series B Preferred Stock converted to Common Stock shall cease to accumulate on the contrary, and without limiting any other remedy available to the Company Mandatory Conversion Date or any other partyapplicable Conversion Date, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendas applicable.

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

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

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that If on any Dividend Payment Datedate while PSUs are outstanding hereunder, the Company is not permitted to declare or shall pay such any dividend or incur such liability either on the Shares (xother than a dividend payable in Shares), the number of PSUs (if any) 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 held by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability Participant 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 increased by a number equal to: (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 (iia) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (Bx) the number of shares outstanding PSUs held by the Participant as of Common Stock into the related dividend record date, multiplied by (y) a dollar amount equal to the per Share amount of any cash dividend (or, in the case of any dividend payable in whole or in part other than in cash or Shares, the per Share value of such dividend, as determined in good faith by the Committee), divided by (b) the Fair Market Value of a Share on the payment date of such dividend. (b) In the case of any dividend declared on Shares that is payable in the form of Shares, the number of PSUs, if any, held by the Participant shall be increased by a number equal to the product of (I) the number of outstanding PSUs held by the Participant as of the related dividend record date, multiplied by (II) the number of Shares (including any fraction thereof) payable as a dividend on a Share. Shares shall be transferred with respect to all additional PSUs granted pursuant to this Section 4 at the same time as Shares are transferred with respect to the Earned PSUs to which such share of Series A Preferred Stock is then convertible. additional PSUs were attributable. (c) For purposes of this Section 3(a4, the number of PSUs held by the Participant as of the applicable dividend record date shall be deemed to equal (i) zero (0), a if such dividend period record date occurs prior to the Determination Date or (ii) the Earned PSUs (if any) (with respect any additional PSUs granted pursuant to a Dividend Payment Date is this Section 4 to be added to the Earned PSUs held by Participant), if such dividend record date occurs after the Determination Date; provided that, if any dividend on Shares was paid by the Company during the period commencing beginning on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) of Grant and ending on the day Determination Date, on the Determination Date, an additional number of PSUs calculated in accordance with this Section 4, assuming Participant had held the number of Earned PSUs (if any) on the record date of such dividend(s), shall be immediately prior added to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders number of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders Earned PSUs established as of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendDetermination Date.

Dividends. (ai) Holders of shares The Holder(s) shall be entitled to receive, on each share of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyStock, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereofDirectors, out of the assets of the Company any funds legally available thereforfor the payment of dividends, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not cumulative cash dividends at a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum equal to 8.0% of 6% per share on the Liquidation PreferencePreference (the “Dividend Rate”) in accordance with subdivision 1 of Article FOURTH of the Certificate of Incorporation and this Subdivision 3(d); provided thatprovided, however, that in the event that on any Dividend Payment DateDate there shall be accrued and unpaid dividends for any prior Dividend Period, the Company is not permitted to declare or pay such dividend or incur such liability either Dividend Rate shall equal 8.0% per annum of the sum of (x) as a matter of law or the Liquidation Preference and (y) under the terms amount of all such accrued and unpaid dividends for any loan agreementprior Dividend Periods. (ii) Dividends will accrue and cumulate from the Issue Date and are payable quarterly in arrears on the first day of January, credit agreementApril, guarantyJuly and October (each, or related agreement, such dividend (a “Deferred DividendDividend Payment Date”) shall ), commencing on the first Dividend Payment Date following the Issue Date. If a Dividend Payment Date falls on a day that is not be declared by a Business Day, the Board of Directors, shall not dividends will be paid or payable on such the next Business Day as if it were paid on the Dividend Payment Date and no liability interest will accrue in connection therewith. If dividends on any shares of the Series A Preferred Stock shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on cumulative from a date less than thirty days prior to the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability quarter-yearly dividend payment date in respect of such Deferred Dividend (andshares, for the avoidance of doubt, dividends accrued on such Deferred Dividend shares to such date shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding date but shall be payable on the next following quarter-yearly dividend payment date. (iii) The amount of dividends payable for each full quarterly Dividend Payment Date)Period will be computed by dividing the Dividend Rate by four. The amount of dividends payable for the initial Dividend Period, or any other period that is Dividend Period shorter or longer than a full semiannual dividend period quarterly Dividend Period, will be computed on the basis of the actual number of days elapsed during such Dividend Period over a 360-day year consisting of twelve 30-day months. Commencing on and following year. (iv) Dividends will be paid to the Meeting End Date, Holder(s) as such Holder(s) appear in the event that dividends are paid records of the Corporation at the Close of Business on shares the 15th day of Common Stock the immediately preceding calendar month in any dividend period with respect to which the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a applicable Dividend Payment Date is falls (the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything The Dividend Record Date shall apply regardless of whether any particular Dividend Record Date is a Business Day. (v) Dividends on any share of Series A Preferred Stock converted to Common Stock shall cease to accumulate on the Mandatory Conversion Date or any applicable Conversion Date, as applicable. (vi) In case the stated dividends and the amounts payable on liquidation are not paid in full, the shares of the Series A Preferred Stock shall share ratably in the payment of dividends (including accumulations, if any) in accordance with the sums which would be payable on said shares if all dividends were declared and paid in full, and in any distribution of assets other than by way of dividends in accordance with the sums which would be payable on such distributions if all sums payable were discharged in full. (vii) So long as any shares of the Series A Preferred Stock are outstanding, no dividend whatever shall be paid or declared at any time, and no distribution made, on any junior stock (other than in junior stock) nor shall any shares of junior stock be purchased or otherwise acquired for value or redeemed at any time by the Corporation or any subsidiary unless all dividends on the Series A Preferred Stock for all past quarter-yearly dividend periods (other than the first quarter-yearly dividend period for any shares if the dividend on such shares for such period shall not then be payable pursuant to the provisions of Subdivision 3(d)(ii)) shall have been paid and the full dividends thereon for the then current quarter-yearly dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart; provided, however, that the foregoing restriction in this Section 3(aSubdivision 3(d) shall not apply to the contraryacquisition of any junior stock solely in exchange for, or solely out of the proceeds of sale of, any other junior stock. Subject to the foregoing provisions of this Subdivision 3(d), and without limiting to any other remedy further limitations prescribed by the Board of Directors in accordance with subdivision 1 of Article FOURTH of the Certificate of Incorporation, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board of Directors may be declared and paid on any junior stock from time to time out of any funds of the Corporation legally available to therefor, and the Company or any other party, dividends Series A Preferred Stock shall not accrue or be payable entitled to participate in respect any such dividends. (viii) The holders of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company Series A Preferred Stock shall not be entitled to receive any dividends thereon other than the dividends referred to in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendthis Subdivision 3(d).

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

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

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

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

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

Dividends. (a) Holders The holders of shares of Series A Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, when and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, out of funds legally available for the payment of dividends, dividends per Preferred Share at a rate equal to the product of (x) the Annual Dividend Rate and (y) the Stated Liquidation Preference Amount. In addition, the holders of Preferred Shares shall be entitled to receive dividends paid or payable on the Common Shares from time to time, if any, whether paid or payable in cash, shares of Capital Stock of the Corporation (including, but not limited to, Common Shares), evidence of its Indebtedness, rights or warrants to subscribe for or purchase any of its securities or any other assets or property, with respect to the number of Common Shares, or portion thereof, into which each Preferred Share is then convertible at the Conversion Price. The amount referred to in the foregoing sentence with respect to each Dividend Period shall be determined as of the applicable Dividend Payment Record Date by multiplying the number of Common Shares, or portion thereof calculated to the fourth decimal point, into which a Preferred Share would be convertible at the opening of business on such Dividend Payment Record Date (based on the Conversion Price then in effect) by the dividend payable or paid for such Dividend Period in respect of a Common Share outstanding as of the record date for the payment of dividends on the Common Shares with respect to such Dividend Period or, if different, with respect to the most recent period for which dividends with respect to the Common Shares have been declared. All dividends payable under the first sentence of this Section 3(a) shall be cumulative from the Issue Date, whether or not in any Dividend Period or Periods there shall be funds of the Corporation legally available for the payment of such dividends, and shall be payable, when, as and if authorized and declared, in arrears on Dividend Payment Dates, commencing on the first Dividend Payment Date after the Issue Date. Each such dividend shall be payable in arrears to the holders of record of the Preferred Shares, as they appear on the stock records of the Corporation at the close of business on each record date, which shall not be more than 30 days preceding the applicable Dividend Payment Date (the “Dividend Payment Record Date”), as shall be fixed by the Board of Directors. Any Dividend Arrearages may be authorized and declared and paid or payable at any time, without reference to any regular Dividend Payment Date, to holders of record on such date, which shall not be more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. Dividends on the Preferred Shares shall, at the Corporation’s option, on each Dividend Payment Date, either (i) be paid in cash on such Dividend Payment Date or (ii) added to the Stated Liquidation Preference Amount for the purposes of calculating dividends pursuant to this Section 3(a) (until such time as the Corporation declares and no liability shall be incurred pays such dividend in respect thereoffull and in cash, and insteadat which time, such Deferred Dividend dividend shall no longer be declared, become payable and be paid and part of the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, Stated Liquidation Preference Amount for the avoidance purposes of doubt, such Deferred Dividend shall be payable in addition to, calculating dividends pursuant to this Section 3(a)) (any amount that has been added to the Stated Liquidation Preference Amount and not in lieu ofyet paid, any dividend which would ordinarily be payable on such succeeding a “Dividend Payment DateArrearage”). . (b) The amount of dividends payable for the initial Dividend Period, or any other period that is shorter or longer than a full semiannual dividend period will Dividend Period, on the Preferred Shares shall be computed on the basis of twelve 30-day months and a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Dateyear. (c) All dividends paid with respect to Preferred Shares shall be paid pro rata. (d) So long as any Preferred Shares are outstanding, no dividends, except as described in the event that immediately following sentence, shall be authorized and declared and paid or set apart for payment on any series or class or classes of Parity Shares for any period unless full cumulative dividends have been or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for such payment on the Preferred Shares for all Dividend Periods prior to the dividend payment date for such class or classes or series of Parity Shares. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends authorized and declared upon Preferred Shares and all dividends authorized and declared upon any other series or class or classes of Parity Shares shall be authorized and declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Preferred Shares and such class or classes or series of Parity Shares. (e) So long as any Preferred Shares are outstanding, no dividends shall be authorized and declared and paid or set apart for payment and no other distribution shall be authorized and declared and made upon Junior Shares (other than dividends or other distributions paid solely in Junior Shares, or options, warrants or rights to subscribe for or purchase Junior Shares), nor shall any Junior Shares be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of Common Shares made for purposes of and in compliance with requirements of an employee incentive or benefit plan of the Corporation or any Subsidiary) for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of Common Stock such stock) by the Corporation, directly or indirectly (except by conversion into or exchange for Junior Shares), unless in each case the full cumulative dividends on all outstanding Preferred Shares and any dividend period other Parity Shares shall have been paid or set apart for payment for all past Dividend Periods with respect to the Series A Preferred Stock, then a Shares and all past dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period periods with respect to such Parity Shares. (f) In any case where any dividend payment date shall not be a Dividend Payment Date is Business Day, then (notwithstanding any other provision of this Certificate of Designations) payment of dividends need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the dividend payment date; provided, however, that no interest shall accrue on such amount of dividends for the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) from and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the after such dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendpayment date.

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

Dividends. Cinergy shall not, nor shall it permit any of its subsidiaries to, (ai) Holders of shares of Series A Preferred Stock shall be entitled to cumulative declare, set aside or pay any dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability make other distributions in respect of any of its capital stock or share capital, except: (A) that Cinergy may continue the declaration and payment of regular quarterly cash dividends on Cinergy Common Stock, not to exceed $0.48 per share, with usual record and payment dates for such Deferred Dividend (anddividends in accordance with past dividend practice; provided, for that if the avoidance of doubt, such Deferred Dividend shall be payable in addition to, Cinergy Effective Time does not occur between a record date and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis payment date of a 360-day year consisting regular quarterly dividend, a special dividend may be declared and paid in respect of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Cinergy Common Stock in any dividend period with respect to the Series A Preferred Stockquarter in which the Cinergy Effective Time occurs with a record date in such quarter and on or prior to the date on which the Cinergy Effective Time occurs, then a which dividend shall be payable in respect of each share of Series A Preferred Stock for such period in does not exceed an amount equal to the greater product of (i) a fraction the amount otherwise payable (x) numerator of which is equal to the number of days between the last payment date of a regular quarterly dividend and the record date of such special dividend (excluding such last payment date but including the record date of such special dividend) and (y) the denominator of which is equal to the number of days between the last payment date of a regular quarterly dividend and the same calendar day in the third month after the month in which such last payment date occurred (excluding such last payment date but including such same calendar day), multiplied by (ii) the then permitted quarterly dividend per share, and (B) for the declaration and payment of dividends by a direct or indirect wholly-owned subsidiary solely to its parent, or by a direct or indirect partially owned subsidiary of Cinergy (provided that Cinergy or the Cinergy subsidiary receives or is to receive its proportionate share of such dividend or distribution), and (C) for the declaration and payment of regular cash dividends with respect to preferred stock of Cinergy's subsidiaries outstanding as of the date of the Agreement or permitted to be issued under the terms of this Agreement, and (D) to the extent advisable in the exercise of the fiduciary duties of the Board of Directors of Cinergy, for the declaration and payment of a customary share purchase rights plan, provided, that, (1) Cinergy shall provide Duke prior notice of any such declaration or payment and (2) in connection with any such declaration or payment, the Board of Directors of Cinergy and Cinergy shall cause (x) this Agreement and the transactions contemplated hereby to not result in a "Distribution Date" (as such term may be defined in any such share purchase rights plan) or similar event under such share purchase rights plan and (y) any such share purchase rights plan to be inapplicable in all respects to this Agreement, the Duke Merger, the Cinergy Merger and the other transactions contemplated hereby; and (ii) split, combine, reclassify or take similar action with respect to any of its capital stock or share capital or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or comprised in its share capital, (iii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or (iv) except as disclosed in Section 4.01(c)(iv) of the Cinergy Disclosure Letter, directly or indirectly redeem, repurchase or otherwise acquire any shares of its capital stock or any Option with respect thereto except: (A) in connection with intercompany purchases of capital stock or share capital, or (B) for the purpose of Series A Preferred funding the Cinergy Employee Stock Option Plans or employee stock ownership or dividend reinvestment and stock purchase plans, or (C) mandatory repurchases or redemptions of preferred stock of Cinergy's subsidiaries in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendterms thereof.

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

Dividends. (a) Holders of In the event that a distribution with respect to the shares of Series A Preferred 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 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 cumulative dividends on declare a dividend per share payable to holders of REIT II Common Stock, in an amount per share of REIT II Common Stock equal to the Series A Preferred Stock payable semiannually, which dividends shall be quotient obtained by dividing (x) the dividend declared by REIT III with respect to each share of REIT III Common Stock by (y) the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in Exchange Ratio. In the event that on any Dividend Payment Date, the Company is not permitted to REIT II shall declare or pay such any dividend or incur such liability either other distribution that is expressly permitted pursuant to the proviso at the end of Section 6.2(b)(iii), it 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) as a matter the dividend declared by REIT II with respect to each share of law or REIT II Common Stock by (y) under the terms of Exchange Ratio. The record date and time and payment date and time for any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”payable pursuant to this Section 7.8(b) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Closing Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

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

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

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

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

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

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

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

Dividends. (a) Holders To the extent necessary to satisfy the requirements of Section 857(a)(1) of the Code for the taxable year of ICH ending at the Effective Time, ICH shall declare and pay a dividend (the "Final ICH Dividend") to holders of shares of Series A Preferred Stock ICH Stock, the record and payment dates for which shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on before the close of business on the last business day prior to the Effective Time, in an amount sufficient to permit ICH to satisfy such requirements. If ICH determines it necessary to declare the Final ICH Dividend, and such Final ICH Dividend is not paid in the ordinary course of business, consistent with past practice, as provided in Section 5.2(a)(i) hereof, it shall notify ACT at least ten days prior to the date for the ICH Stockholder Meeting (as defined below), and ACT shall declare a dividend per ACT Common Share, the record date for which shall be the close of business on the last business day prior to the Effective Time, in an amount per share equal to the quotient obtained by dividing (x) the Final ICH Dividend per share of ICH Stock paid by ICH by (y) the Exchange Ratio. (b) No dividends or other distributions with respect to ACT Common Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the ACT Common Shares represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.5, in each case until the surrender of such Certificate in accordance with this Article II. Subject to the effect of applicable escheat laws, as soon as reasonably practicable following surrender of any such Certificate there shall be paid to the holder of such Certificate, without interest, (i) at the time of such surrender, the amount of any cash payable in lieu of any fractional ACT Common Share to which such holder is entitled pursuant to Section 2.5 and (ii) if such Certificate is exchangeable for one or more whole ACT Common Shares, (x) at the Board time of Directors such surrender the amount of dividends or other distributions with a duly authorized committee thereof declares record date after the dividend Effective Time theretofore paid with respect to such whole ACT Common Shares and (y) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender and with a payment date subsequent to such surrender payable with respect to such whole ACT Common Shares. (each, a “Dividend Record Date”). c) Notwithstanding anything in any provision of this Section 3(a) Article II to the contrary, dividends shall be paid by ICH pro rata with respect to each outstanding share of beneficial interest within a particular class of ICH Stock and without limiting any other remedy available dividends shall be paid by ACT pro rata with respect to each outstanding share of beneficial interest of ACT within a particular class in accordance with the requirements of Section 562(c) of the Code (including, as necessary, by transferring cash to an appropriate paying agent), and no dividend payments shall accrue to the Company benefit of ACT or ICH for failure of a former holder of ICH Stock to surrender any other party, dividends shall not accrue or be payable in respect certificate representing any share of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendICH Stock.

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

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

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

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

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

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

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

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

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

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

Dividends. (a) Holders of shares of Series A Preferred Stock 10.4.1 The Borrower shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends not and shall be declared by the Board of Directors or a duly authorized committee thereof, out procure that no other member of the assets NCLC Group shall, pay any dividends or make any other distributions in respect of its share capital to any person, provided that (i) subsidiaries of the Company legally available therefor, and shall be payable semiannually commencing on Borrower may pay dividends to another member of the 180th day following NCLC Group; (ii) the Issue Date (Borrower may pay dividends in respect of tax liability to each relevant jurisdiction in respect of tax returns for each relevant jurisdiction of the NCLC Group or holder of the following Business Day if any such payment date is not a Business Day) (each such date being referred Borrower’s capital stock with respect to herein income taxable as a “Dividend Payment Date”result of any member of the NCLC Group being treated as a pass-through entity or attributable to any member of the NCLC Group and (iii) at after the rate per annum later 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 the listing of law the ordinary capital stock of the Borrower or parent company of the Borrower on an Approved Stock Exchange and (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 Total Delayed Principal Amount having been cancelled and/or prepaid and/or repaid, dividends may be paid in an amount not to exceed [*] of (i) the amount otherwise payable in respect Consolidated Net Income of such share of Series A Preferred Stock in accordance with the foregoing paragraph Borrower 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 its subsidiaries for the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) 1 January 2010 and ending on the day immediately date prior to such payment for which accounts are available, so long as (I) at the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable time of the payment of such dividend, no Event of Default has occurred and is continuing or would result from the payment of such dividend and (II) after giving effect to Holders such dividend the ratio of record on Total Net Funded Debt to Consolidated EBITDA for the close of business on the day on four (4) consecutive financial quarters last ended for which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) accounts have been provided to the contrary, and without limiting any other remedy available Agent pursuant to Clause 10.2 is less than [*]. The Agent shall use the Application of Proceeds Formulation to determine whether an amount equal to the Company relevant Maximum Amount of the Delayed Principal Amount has been cancelled and/or prepaid and/or repaid. 10.4.2 The Borrower will procure that any dividends or any other party, dividends shall not accrue distributions and interest paid or be payable in respect connection therewith received by the Shareholder, NCL America Holdings and/or Arrasas will be paid to the Borrower by way of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividend promptly on receipt.

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

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

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

Dividends. Declare or pay, or permit any of its Subsidiaries to declare or pay, any dividends or make any other distribution on Capital Stock of Rayonier or any of its Subsidiaries (a) Holders other than dividends or distributions payable solely in Capital Stock of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided thatRayonier or, in the case of dividends paid to Rayonier or any of its Subsidiaries, Capital Stock of such Subsidiary) or purchase, redeem, defease or otherwise acquire or retire for value, or permit any of its Subsidiaries to purchase, redeem, defease or otherwise acquire or retire for value any of the Capital Stock of Rayonier or any of its Subsidiaries at any time outstanding except as provided in this Section 5.03(a). So long as no Default or Event of Default has occurred and is then continuing, Rayonier and its Subsidiaries shall be permitted to redeem, repurchase or otherwise acquire or retire any of their respective Capital Stock and declare and pay dividends on their respective Capital Stock from time to time in amounts determined by Rayonier or such Subsidiaries; provided, however, that subject to the terms of the next sentence, in no event that on shall Rayonier (or, after any Dividend Payment Additional Borrower Effective Date, the Company Additional Borrower) declare or pay dividends on its Capital Stock if dividends (other than dividends or distributions payable solely in Capital Stock of Rayonier (or, after the Additional Borrower Effective Date, the Additional Borrower)) paid in, or with respect to, any period of four Fiscal Quarters, in the aggregate, would exceed the sum of (1) 90% of Funds From Operations for such period plus (2) the aggregate amount of dividends permitted pursuant to the foregoing clause (1) in the preceding period of four Fiscal Quarters in excess of the aggregate amount dividends actually paid during such period. Notwithstanding the foregoing, unless at the time of such distribution any Event of Default has occurred and is not then continuing under Section 6.01(a), Rayonier (and, if applicable any Additional Borrower) shall be permitted to declare or and pay such dividend or incur such liability either (x) whatever amount of cash dividends is necessary for Rayonier to maintain its tax status as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendREIT.

Dividends. (a) Holders The holders of shares of the Series A B Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Datecollectively, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”"Holders") shall not be declared by entitled to receive dividends unless, within six (6) months following the Board date of Directorsissuance of the Series B Preferred Stock to the Holders (the "Amendment Date"), shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is has not prohibited from declaring, paying and incurring the liability amended its certificate of incorporation in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than order to authorize a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the sufficient number of shares of Common Stock into which such share all of the issued and outstanding shares of Series A B Preferred Stock is then convertiblemay be converted. For purposes In the event the Company does not make such an amendment by the Amendment Date, the Holders shall be entitled to receive cumulative dividends per share at the rate of this Section 3(aeight percent (8%) per annum of the Per Share Liquidation Preference (as defined below), a which shall accrue daily from the date of issuance of the Series B Preferred Stock, and which shall be compounded quarterly. Such dividends shall be payable by the Company (i) prior to payment of any dividend period with respect to Junior Securities and shall be equal, if not greater, in amount to any such dividend on a Dividend Payment Date is per share basis; and (ii) on parity with any dividend with respect to the period commencing Parity Securities and at an amount equal to the dividend on a per share basis received by the preceding Dividend Payment Date holders of the Parity Securities. (orb) Any and all dividends shall be payable out of any cash legally available therefor, and if there is no preceding Dividend Payment Datenot a sufficient amount of cash available, then out of the Issue Date) and ending remaining assets of the Company legally available therefor (valued at the fair market value thereof on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders date of record on the close of business on the day on which payment, as determined by the Board of Directors or a duly authorized committee thereof declares of the dividend payable (eachCompany); provided, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) however, that to the contraryextent funds or assets are not legally available for the payment of any dividend, and without limiting any other remedy available to then the Company shall pay such unpaid dividends promptly as funds or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendassets become legally available therefor.

Dividends. (a) Holders The holders of the then outstanding shares of Series A C Preferred Stock shall will be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, receive out of the assets funds of the Company legally available therefortherefore, cumulative dividends accruing on a daily basis from the Original Issuance Date (as hereinafter defined) through and shall be including the date on which such dividends are paid at the annual rate of 10% (the "Applicable Rate") of the Liquidation Preference (as hereinafter defined) per share of the Series C Preferred Stock, payable semiannually on each March 31, June 30, September 30 and December 31, commencing on the 180th day following the Issue Date June 30, 2003 (or the following Business Day each such date, a "Dividend Payment Date") and calculated in accordance with Section 3(d); provided that: (i) if any such payment date Dividend Payment Date is not a Business Day) (each Day then such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to on the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph next Business Day, and (ii) the product of (A) the aggregate accumulated and unpaid dividends payable per share of Common Stock in such dividend for any prior quarterly period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertiblemay be paid at any time. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date Such dividends shall be payable to Holders cumulative whether or not earned or declared and whether or not there are profits, surplus or other funds of record on the close Company legally available for the payment of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (eachdividends. The term "Original Issuance Date" means March [27], a “Dividend Record Date”)2003. Notwithstanding anything The dividends provided for in this Section 3(a) are hereinafter referred to as "Dividends." Dividends shall be payable, at the option of the Company, either (i) in cash, (ii) by issuance of additional shares of Series C Preferred Stock (including fractional shares) having an aggregate Liquidation Preference equal to the contraryamount of the dividend to be paid, or (iii) any combination thereof. All dividends paid with respect to shares of Series C Preferred Stock, whether in cash or shares of Series C Preferred Stock, pursuant to this Section 3 shall be made pro rata among the holders thereof based upon the aggregate accrued but unpaid dividends on the shares held by each such holder. If and without limiting when any other remedy available to shares are issued under this Section 3(a) for the Company payment of accrued dividends, such shares shall be validly issued and outstanding and fully paid and nonassessable. For all purposes hereunder, dividends on the Series C Preferred Stock shall be treated as if the same were paid on the relevant Dividend Payment Date, whether or any other partynot the same were in fact so paid or declared. In the case of shares of Series C Preferred Stock issued as a dividend on shares of Series C Preferred Stock, dividends shall not accrue or and be payable cumulative from the Dividend Payment Date in respect of which such shares initially issued any Holder who is contractually obligated were scheduled to appear and vote in favor of any proposal made at be paid pursuant to this Section 3(a) as a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividend.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets funds of the Company legally available thereforfor payment, cumulative dividends in cash at the Dividend Rate. To the extent that the Company is legally permitted to pay dividends, the Company’s Board of Directors shall declare and the Company shall pay dividends in cash on each Dividend Payment Date. Dividends on the Preferred Stock shall be payable quarterly in arrears at the Dividend Rate, and shall accumulate, whether or not earned or declared, from the most recent date to which dividends have been paid, or, if no dividends have been paid, from the Issue Date (whether or not in any Dividend Period or Periods any agreements of the Company prohibit the current payment of dividends, there shall be funds of the Company legally available for the payment of such dividends or the Company declares the payment of dividends), and shall be paid in cash. Dividends shall be payable semiannually in arrears on each Dividend Payment Date (commencing on August 15, 2015) to the 180th day following holders of record of Preferred Stock as they appear on the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) Company’s stock register at the rate per annum close of 6% per share business on the Liquidation Preference; provided that, in the event that relevant Dividend Record Date. Accumulations of dividends on shares of Preferred Stock for any past Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not Periods may be declared by the Board and paid at any time to holders of Directors, shall record of Preferred Stock not be paid or payable on such more than 30 nor less than 10 calendar days immediately preceding any Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, not bear interest. The Company shall provide not less than 20 Scheduled Trading Days’ notice prior to any such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends Dividends payable for any other period that is shorter or longer less than a full semiannual dividend period will quarterly Dividend Period (based upon the number of days elapsed during the period) shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following . (b) No dividend shall be declared or paid upon, or any sum set apart for the Meeting End Datepayment of dividends upon, in any outstanding share of the event that dividends are paid on shares of Common Preferred Stock in any dividend period with respect to any Dividend Period unless all dividends for all preceding Dividend Periods have been declared and paid, or declared and a sufficient sum has been set apart for the Series A payment of such dividend, upon all outstanding shares of Preferred Stock, then . (c) No dividends or other distributions (other than a dividend or distribution payable solely in shares of Junior Stock and cash in lieu of fractional shares) may be declared, made or paid, or set apart for payment upon, any Parity Stock or Junior Stock, nor may any Parity Stock or Junior Stock be redeemed, purchased or otherwise acquired for any consideration (or any money paid to or made available for a sinking fund for the redemption of any Parity Stock or Junior Stock) by the Company or on behalf of the Company (except by: (i) conversion into or exchange for shares of Junior Stock and cash solely in lieu of fractional shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock) and (ii) payments in connection with the satisfaction of employees’ tax withholding obligations pursuant to employee benefit plans or outstanding awards (and payment of any corresponding requisite amounts to the appropriate governmental authority)), unless all Accumulated Dividends shall have been or contemporaneously are declared and paid, or are declared and a sum sufficient for the payment thereof is set apart for such payment, on the Preferred Stock and any Parity Stock for all dividend payment periods ending on or prior to the date of such declaration, payment, redemption, purchase or acquisition. Notwithstanding the foregoing, if full dividends have not been paid on the Preferred Stock and any Parity Stock, dividends may be payable declared and paid on the Preferred Stock and such Parity Stock so long as the dividends are declared and paid pro rata so that the amounts of dividends declared per share on the Preferred Stock and such Parity Stock shall in all cases bear to each other the same ratio that accumulated and unpaid dividends per share on the shares of Preferred Stock and such Parity Stock bear to each other at the time of declaration. (d) Holders of shares of Preferred Stock shall not be entitled to any dividend in excess of full cumulative dividends. (e) If any Dividend Payment Date falls on a day that is not a Business Day, the required payment will be on the next succeeding Business Day and no interest or dividends on such payment will accrue or accumulate as the case may be, in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of delay. (if) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number The Holders of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on at the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares Dividend Record Date shall be entitled to receive the dividend payable (each, a “payment on those shares on the corresponding Dividend Payment Date notwithstanding the conversion of such shares in accordance with Section 9 following such Dividend Record Date or the Company’s default in payment of the dividend due on such Dividend Payment Date”). Notwithstanding anything Except as provided in this Section 3(a) to the contrarySections 9, 10 and without limiting any other remedy available to 11, the Company shall make no payment or any other partyallowance for unpaid dividends, whether or not in arrears, on converted shares of Preferred Stock or for dividends shall not accrue or be payable in respect on the shares of shares initially Common Stock issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendupon conversion.

Dividends. (a) Holders of shares of Series A Preferred Stock shall The HARRP Board, in its sole discretion, may declare a dividend to be entitled paid to cumulative dividends on the Series A Preferred Stock payable semiannuallyMembers as a class with respect to any calendar year. The dividend, which dividends if any, with respect to a calendar year shall be declared by when the HARRP Board of Directors believes that all or a duly authorized committee thereof, out substantially all of the assets of claims and losses relating to the Company legally available therefor, calendar year have been resolved and shall be payable semiannually commencing on additional claims and losses relating to the 180th day following the Issue Date (calendar year are barred or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)substantially unlikely. The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable determined by the HARRP Board, in respect its sole discretion. The dividend shall be allocated among the Members of record in the ratio that the Net Financial Contribution of each share of Series A Preferred Stock for such period in an amount equal Member entitled to the greater dividend for the calendar year for which the dividend is declared bears to the total Net Financial Contribution of (i) all Members entitled to the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with dividend for the foregoing paragraph and (ii) calendar year for which the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertibledeclared. For purposes of this Section 3(a)Agreement, a dividend period the “Net Financial Contribution” of each Member, with respect to a Dividend Payment Date the calendar year for which the dividend is declared, shall be equal to the period commencing on the preceding Dividend Payment Date (orpositive amount, if there is no preceding Dividend Payment Dateany, by which the Member’s written Contribution for the calendar year exceeds the Member’s Paid Losses for the calendar year. Notwithstanding the foregoing, in the event the foregoing allocation of dividends shall not be in accordance with HARRP’s exemption from Federal income taxation, the Issue DateHARRP Board may allocate the dividend among the Members in a fair and equitable manner, determined in the discretion of the HARRP Board, which shall be in accordance with HARRP’s exemption from Federal income taxation. The HARRP Board shall fix a record date for the dividend in accordance with the Bylaws. Any reasonable determination by the HARRP Board in accordance with this Section 9.1 with respect to the allocation of any dividend among the Members shall be conclusive and binding upon the Members. At the option of each Member, the dividend may be received in cash or credited against future Contributions payable by the Member. Members who have terminated under Section 4.5 or have been expelled under Section 4.6 shall not be entitled to receive a dividend relating to a calendar year (or portion thereof) and ending on during which the day immediately terminated or expelled Member was a Member of HARRP if the effective date of termination or expulsion is prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on date for the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividend.

Dividends. (a) Holders The holders of the then outstanding shares of Series A B Preferred Stock shall will be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, receive out of the assets funds of the Company legally available therefortherefore, cumulative dividends accruing on a daily basis from the Original Issuance Date (as hereinafter defined) through and shall be including the date on which such dividends are paid at the annual rate of 10% (the "Applicable Rate") of the Liquidation Preference (as hereinafter defined) per share of the Series B Preferred Stock, payable semiannually on each March 31, June 30, September 30 and December 31, commencing on the 180th day following the Issue Date September 30, 2002 (or the following Business Day each such date, a "Dividend Payment Date") and calculated in accordance with Section 3(d); provided that: (i) if any such payment date Dividend Payment Date is not a Business Day) (each Day then such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to on the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph next Business Day, and (ii) the product of (A) the aggregate accumulated and unpaid dividends payable per share of Common Stock in such dividend for any prior quarterly period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertiblemay be paid at any time. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date Such dividends shall be payable to Holders cumulative whether or not earned or declared and whether or not there are profits, surplus or other funds of record on the close Company legally available for the payment of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (eachdividends. The term "Original Issuance Date" means June 27, a “Dividend Record Date”)2002. Notwithstanding anything The dividends provided for in this Section 3(a) are hereinafter referred to as "Dividends." Dividends shall be payable, at the option of the Company, either (i) in cash, (ii) by issuance of additional shares of Series B Preferred Stock (including fractional shares) having an aggregate Liquidation Preference equal to the contraryamount of the dividend to be paid, or (iii) any combination thereof. All dividends paid with respect to shares of Series B Preferred Stock, whether in cash or shares of Series B Preferred Stock, pursuant to this Section 3 shall be made pro rata among the holders thereof based upon the aggregate accrued but unpaid dividends on the shares held by each such holder. If and without limiting when any other remedy available to shares are issued under this Section 3(a) for the Company payment of accrued dividends, such shares shall be validly issued and outstanding and fully paid and nonassessable. For all purposes hereunder, dividends on the Series B Preferred Stock shall be treated as if the same were paid on the relevant Dividend Payment Date, whether or any other partynot the same were in fact so paid or declared. In the case of shares of Series B Preferred Stock issued as a dividend on shares of Series B Preferred Stock, dividends shall not accrue or and be payable cumulative from the Dividend Payment Date in respect of which such shares initially issued any Holder who is contractually obligated were scheduled to appear and vote in favor of any proposal made at be paid pursuant to this Section 3(a) as a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividend.

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

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofwhen, out of the assets of the Company legally available thereforas, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, out of funds legally available therefor, cumulative cash dividends at the Applicable Rate per annum (determined as set forth below) payable on the respective dates set forth below to the holders of record of shares of Preferred Stock as of the Business Day next preceding the payment date. (b) Dividends on the shares of Preferred Stock shall accumulate from and including the Original Issuance Date. Accrued dividends shall be payable commencing on the date next succeeding the last day of the 45-day period commencing on the Original Issuance Date (the "Initial Dividend Payment Date") and on each day thereafter which is the date next succeeding the last day of the successive 30-day periods after such date. If any date next succeeding such last day (the "Scheduled Payment Day") is not be paid a Business Day or (if the Paying Agent does not make payments in same-day funds) the day succeeding the Scheduled Payment Day is not a Business Day, dividends payable on such Scheduled Payment Day shall be paid on the first Business Day succeeding such Scheduled Payment Day that is next succeeded by a day which is also a Business Day. Any date on which a dividend on the Preferred Stock is payable pursuant to this paragraph 3(b) is herein called a "Dividend Payment Date." The period beginning on and including the Original Issuance Date and ending on (but not including) the Initial Dividend Payment Date and no liability shall be incurred in respect thereofis referred to herein as the "Initial Dividend Period." Each successive period commencing on, and insteadincluding, such Deferred the Dividend shall be declared, become payable Payment Date for the preceding Dividend Period and be paid ending on (and including) the liability in respect thereof be incurred on day preceding the first next succeeding Dividend Payment Date on which is referred to herein as a "Subsequent Dividend Period" and the Company is not prohibited from declaring, paying Initial Dividend Period and incurring the liability in respect of such Deferred each Subsequent Dividend Period together are sometimes referred to herein as "Dividend Periods." (and, i) The Applicable Rate for the avoidance of doubt, such Deferred Initial Dividend Period shall be payable the rate per annum for the Initial Dividend Period set forth in addition to, and not in lieu of, any dividend which would ordinarily be the Corporation's Prospectus covering the initial offering of the Preferred Stock. For the purpose of calculating the rate of dividends per annum payable on such succeeding shares of Preferred Stock (the "Applicable Rate") for each Subsequent Dividend Payment DatePeriod the Corporation shall enter into an agreement with the Auction Agent (the "Auction Agent Agreement"). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed Applicable Rate 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 each Subsequent Dividend Period shall be determined by the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock Auction Agent in accordance with the foregoing Auction Agent Agreement, which shall provide that the Auction Agent will follow the Auction Procedures described in paragraph and 8 hereof to determine the Applicable Rate. In the event there is no Auction Agent on the Business Day prior to the first day of a Dividend Period, the Applicable Rate for such Dividend Period shall be equal to the Maximum Applicable Rate (iias defined in paragraph 8(a) hereof) that could have resulted pursuant to the product Auction Procedures, as determined by the Corporation, on such Business Day. The Corporation shall exercise its best efforts to maintain an Auction Agent pursuant to an agreement containing terms no less favorable to the Corporation than the terms of (A) the aggregate dividends payable per share Auction Agent Agreement. If, due to the issuance of Common Stock in such dividend period times (B) the number a Notice of Redemption, no shares of Common Stock into which such share of Series A Preferred Stock are deemed outstanding on any Auction Date, or if no Auction is then convertible. For purposes of this Section 3(a)held on such date for any other reason, a dividend period with respect to a the Applicable Rate for the Dividend Payment Date is the period commencing Period beginning on the preceding Dividend Payment Business Day following such Auction Date shall be equal to the Maximum Applicable Rate that could have resulted pursuant to the Auction Procedures, as determined by the Auction Agent (or, if there is no Auction Agent, by the Corporation), on such Business Day. (ii) The amount of dividends per share payable on shares of Preferred Stock for each Dividend Period or part thereof shall be determined by the Auction Agent and shall be an amount equal to $100,000 per share of Preferred Stock multiplied by the product of (1) the Applicable Rate for such Dividend Period and (2) a fraction, the numerator of which shall be the actual number of days in such Dividend Period or part thereof and the denominator of which shall be 360. All dollar amounts used in or resulting from such calculations will be rounded to the nearest cent (with one-half (0.5) cent being rounded up). (i) The Corporation will not issue any series of any class of stock which is senior to or on a parity with the Preferred Stock. No holders of shares of Preferred Stock shall be entitled to any dividends, whether payable in cash, property or stock, in excess of full cumulative dividends, as provided in this paragraph 3, on shares of Preferred Stock. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payments on any shares of the Preferred Stock that may be in arrears. (ii) For so long as shares of Preferred Stock are outstanding, the Corporation shall not declare, pay or set apart for payment any dividend or other distribution in respect of the Common Stock or any other stock of the Corporation ranking junior to the shares of Preferred Stock as to dividends or upon liquidation, or call for redemption, redeem, purchase or otherwise acquire for consideration any shares of the Common Stock or any other stock of the Corporation ranking junior to the shares of Preferred Stock as to dividends or upon liquidation (except by conversion into or exchange for stock of the Corporation ranking junior to the shares of Preferred Stock as to dividends and upon liquidation), unless, in each case, (A) immediately thereafter, the Preferred Stock Basic Maintenance Amount would be achieved, if at such time the Surety Bond is not in effect, (B) such transaction is on a Dividend Payment Date, (C) such transaction would not violate applicable law (including, without limitation, Section 18(a) of the Investment Company Act and Maryland law) and (D) full cumulative dividends on all shares of Preferred Stock for all Dividend Periods ending on or prior to such Dividend Payment Date have been declared and paid (or sufficient Deposit Securities shall have been set apart for their payment). If on any Dividend Payment Date as of which the Surety Bond is in effect, the Corporation defaults in making dividend payments on shares of Preferred Stock and the Surety makes such payments to the holders of shares of Preferred Stock, the Surety thereafter shall be subrogated to all rights of the holders of shares of Preferred Stock to receive such dividend payments. (iii) Any dividend payment made on the shares of Preferred Stock shall first be credited against the dividends accumulated with respect to the earliest Dividend Period for which dividends have not been paid. (iv) At any time that shares of Preferred Stock are outstanding and the Surety Bond is not in effect, the Corporation shall not create, incur or suffer to exist, or agree to create, incur or suffer to exist, or consent to cause or permit in the future (upon the happening of a contingency or otherwise) the creation, incurrence or existence of any material lien, mortgage, pledge, charge, security interest, security agreement, conditional sale or trust receipt or other material encumbrance of any kind (collectively "Liens") upon any of its Eligible Portfolio Property, except for (A) Liens the validity of which are being contested in good faith by appropriate proceedings, (B) Liens for taxes that are not then due and payable or that can be paid thereafter without penalty, (C) Liens to secure payment for services rendered by the Auction Agent or the Trustee with respect to the Notes in connection with the Preferred Stock or the Notes and (D) Liens otherwise incurred in connection with borrowings made in the ordinary course of business in accordance with the Corporation's stated investment objective, policies and restrictions, (e) Not later than noon on the Business Day next preceding each Dividend Payment Date, the Issue Date) and ending Corporation shall deposit with the Paying Agent Deposit Securities consituting immediately available funds in an amount sufficient to pay the dividends that are payable on the day immediately prior to the next such Dividend Payment Date. Dividends payable on a Dividend Payment Date shall The Corporation may direct the Paying Agent with respect to the investment of any such Deposit Securities, provided that the proceeds of any such investment will be payable to Holders of record on available at the close opening of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable such Dividend Payment Date. (each, a “f) Dividends in arrears for any past Dividend Record Date”). Notwithstanding anything in this Section 3(a) Period may be declared and paid to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect holders of shares initially issued of Preferred Stock at any Holder who is contractually obligated time, without reference to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendregular Dividend Payment Date.

Dividends. (ai) Holders When, as, and if declared by the Board, out of shares funds legally available for that purpose, the holders of Series A B Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which receive before any dividends shall be declared by and paid or set aside for Common Stock, dividends, which shall accrue on a daily basis at the Board of Directors or a duly authorized committee thereof, out Applicable Dividend Rate on the sum of the assets Original Cost of the Company legally available therefora share of Series B Preferred Stock, plus all accumulated and shall be unpaid dividends thereon, payable semiannually commencing on the 180th day following the Issue Date each September 30 and March 31 (or the following Business Day if any such payment date is not each, a Business Day) (each such date being referred to herein as a “"Preferred 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 first 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 Preferred 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 being the first succeeding Preferred Dividend Payment Date on following the Series B Conversion Event. Dividends shall accrue at the Applicable Dividend Rate regardless of whether the Board has declared a dividend payment or whether there are any profits, surplus or other funds of the Corporation legally available for dividends. Any dividends which accrue pursuant to this Section 4(a) and which are not paid prior to the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred next succeeding Preferred Dividend (and, for the avoidance of doubt, such Deferred Dividend Payment Date shall be payable classified as "accumulated dividends" and shall remain "accumulated and unpaid dividends" until paid or otherwise satisfied pursuant to this Article X. Dividends on each share of Preferred Stock shall accrue pursuant to this Section 4(a) from and including the Original Issuance Date to and including the date such share is converted or redeemed in addition to, full and not all accrued but unpaid dividends thereon are also converted or paid in lieu of, full. All payments in cash due in cash under this Section 4(a) to any dividend which would ordinarily holder of shares of Series B Preferred Stock shall be payable on such succeeding Dividend Payment Date). made to the nearest cent. (ii) 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 B Preferred Stock on each Preferred Dividend Payment Date shall be paid to the holders of shares of the Preferred Stock as they appear on the stock records of the Corporation on such date (the "Preferred Record Date") as shall be fixed by the Board, which Preferred Record Date shall not be more than 60 days prior to the applicable Preferred Dividend Payment Date and shall not precede the date upon which the resolution fixing such Preferred Record Date is adopted, and if the Board shall not fix a Preferred Record Date, the Preferred Record Date shall be deemed to be the same date as the applicable Preferred Dividend Payment Date. (iii) Except as otherwise provided herein, if at any time the Corporation pays less than the total amount of dividends then accrued with respect to the Series B Preferred Stock, then a dividend such payment shall be payable in respect distributed ratably among the holders of each share of the Series A B 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) based upon the number of shares of Common Stock into which such share of Series A B Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendheld by each holder.

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

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

Dividends. (a) Holders of shares of Series A Trust Preferred Stock Securities shall be entitled to cumulative dividends receive cash distributions at a rate per annum of [__] of the stated liquidation preference of $[__] per Trust Preferred Security. Dividends on the Series A Trust Preferred Stock Securities will accumulate from the date of initial issuance or the last Dividend Date (whichever is later) and will be payable semiannually[quarterly] in arrears, which dividends on [__],[__],[__] and [__] of each year, commencing on [__] if, as and when funds available for payment are held by the Property Trustee in the Property Account. Dividends on the Trust Preferred Securities will not be cumulative unless otherwise specified in a supplement, schedule or an amendment hereto. If the Trust Preferred Securities are in the form of a Global Certificate, the record date for payment of Dividends will be one Business Day prior to the relevant Dividend Date. If the Trust Preferred Securities are in the form of Definitive Trust Preferred Security Certificates, the record date for payment of Dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out 15th day of the assets of month in which the Company legally available therefor, and shall be payable semiannually commencing on relevant Dividend Date falls. In the 180th day following the Issue event that any Dividend Date (or the following Business Day if any such payment date is not a Business Day) (each , payment of such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share Dividends shall be made on the Liquidation Preference; provided next succeeding day which is a Business Day (without any interest or other payment in respect of any such delay) except that, if such Business Day falls in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreementnext succeeding calendar year, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability payment shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred made on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability immediately preceding Business Day (without any reduction of interest or other payments in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Dateearly payment). The amount of dividends Dividends payable for any other period that is shorter or longer than a full semiannual dividend period Dividend Period will be computed on the basis of a 360-day year consisting of twelve 30-day months, and for any Dividend Period shorter than a three month period, on the basis of the actual number of days elapsed. Commencing Amounts available to the Trust for Dividends to the Holders of the Trust Preferred Securities will be limited to payments received by the Trust from the Company on the Company Securities (which payments shall 37 include, but not be limited to, distributions made on the Company Securities pursuant to the Company Securities Guarantee and following the Meeting End DateContingent Distribution) or from the Guarantor pursuant to the Company Securities Guarantee paid by the Guarantor to the Property Trustee. Dividends on the Company Securities will be paid only if, as and when declared in the event that sole discretion of the Company or deemed declared under any of the Guarantees. (b) The right of Holders to receive dividends is noncumulative unless otherwise specified in a supplement, schedule or an amendment hereto. Accordingly, if the Property Trustee does not receive a dividend payment on the Company Securities in respect of any Dividend Period, Holders shall have no right to receive a dividend in respect of such Dividend Period, and the Trust shall have no obligation to pay a dividend in respect of such Dividend Period, whether or not dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be declared payable in respect of each share of Series A Preferred Stock for such period in an amount equal any future Dividend Period. (c) If and to the greater of extent that the Company makes a distribution (iincluding, without limitation, the Contingent Distribution, if any) on the Company Securities held by the Property Trustee or the Guarantor makes a payment under the Company Securities Guarantee (the amount otherwise payable of any such distribution or guarantee payment being a "Payment Amount"), the Trust shall and the Property Trustee is directed, to the extent funds are available for that purpose, to make a Pro Rata distribution of the Payment Amount to the Holders; provided however that, in the case of the Contingent Distribution only, the amount of payment to any Holder shall be reduced by the amount that such Holder has actually received in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) same claim under the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendTrust Securities Guarantee.

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

Dividends. (a) Holders of shares of Series A Preferred Except as otherwise provided herein, dividends paid in any Trust Year in cash on Company Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared held by the Board of Directors or a duly authorized committee thereofTrust (including dividends paid on Released Shares, as defined below, that have not been transferred out of the assets Trust at the time of such dividend payment) shall be applied, immediately upon receipt thereof by the Trustee, (i) first to interest accrued and unpaid as of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if date of any such payment date is and then, to the extent that any such payment exceeds such accrued and unpaid interest, (ii) to prepay interest that accrues after such payment through the end of such Trust Year, and then, (iii) to pay principal installments due within such Trust Year, and then, (iv) to the extent not a Business Day) (each such date being referred otherwise distributed in accordance with the next sentence, to herein as a “Dividend Payment Date”) at the rate per annum additional installments of 6% per share on the Liquidation Preference; provided that, principal 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 order 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)their scheduled maturity. 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 In the event that dividends are paid on shares Company Stock held in the Trust, other than Extraordinary Dividends, exceed the amount of Common Stock scheduled principal and interest due in any dividend period with respect to Trust Year, such excess shall, as determined in good faith by the Series A Preferred StockCommittee, 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) applied to prepay, in whole or in part, principal (and accrued interest thereon to the amount otherwise payable in respect date of such share prepayment) of Series A Preferred Stock in accordance with the foregoing paragraph and Loan or (ii) distributed to the product Plans and/or to any other broad cross section of individuals employed by the Company. Extraordinary Dividends shall not be used to pay interest on or principal of the Loan, but shall be invested in additional Company Stock as soon as practicable, except as provided below. Dividends which are not in cash or in Company Stock (Aincluding Extraordinary Dividends, or portions thereof) shall be reduced to cash by the aggregate dividends payable per share of Common Trustee and reinvested in Company 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 convertibleas soon as practicable, except as provided below. For purposes of this Agreement, Company Stock purchased with the proceeds of an Extraordinary Dividend or with the proceeds of a non-cash dividend shall, for purposes of this Agreement (including, without limitation, Section 3(a3.1 hereof), a dividend period be deemed to have been acquired with respect to a Dividend Payment Date is the period commencing on proceeds of the preceding Dividend Payment Date Loan. In the Trustee's discretion, investments in Company Stock may be made through open-market purchases, private transactions or (or, if there is no preceding Dividend Payment Date, with the Issue DateCompany's consent) and ending on purchases from the day immediately prior Company. The Committee may direct the Trustee as to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders timing and manner of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company such purchases in order to effect comply 11 with applicable law and to avoid, if possible, adverse effects on the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates publicly traded market price of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCompany Stock.

Dividends. (a) Holders of shares of Series A Preferred Stock If on any date while RSUs are outstanding hereunder the Company shall pay any cash dividend on the Shares, the Participant shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared by the Board as of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as payment date, 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 cash payment equal to the greater product of (i) the amount otherwise payable in respect number of such share Vested RSUs, if any, held by the Participant as of Series A Preferred Stock in accordance with the foregoing paragraph and related dividend record date, multiplied by (ii) the per Share amount of such cash dividend. In the case of any dividend declared on Shares that is payable in the form of Shares, the Participant shall be granted, as of the applicable dividend payment date, a number of Shares (rounded down to the next whole Share) equal to the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (Bx) the number of shares Vested RSUs, if any, that have been held by the Participant through the related dividend record date, multiplied by (y) the number of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(aShares (including any fraction thereof) payable as a dividend on a Share. (b) If on any date while RSUs are outstanding hereunder the Company shall pay any dividend on the Shares (whether payable in cash, Shares or other securities), the Participant shall be granted, as of the applicable dividend payment date, a dividend period with respect to a number of additional restricted stock units (the “Dividend Payment Date is the period commencing on the preceding Dividend Payment Date RSUs”) (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior rounded down to the next Dividend Payment Date. Dividends whole unit) equal to the product of (x) the aggregate number of Unvested RSUs that have been held by the Participant through the related dividend record date, multiplied by (y) (A) in the case of a dividend payable in Shares, the number of Shares (including any fraction thereof) payable as a dividend on a Dividend Payment Date shall be Share and (B) in the case of a dividend payable to Holders in cash or other securities, the quotient of record (I) the amount of such cash dividend payable as a dividend on a Share (or fair market value, as determined by the close Committee, of business such other securities payable as a dividend on a Share), divided by (II) the day on which the Board Fair Market Value per Share as of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendpayment date.

Dividends. (a) From and after the Issue Date, Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared when, as and if authorized by the Board of Directors or a duly authorized committee thereofand declared by the Corporation, out of the assets of the Company legally available thereforfunds, on a non-cumulative basis, cash dividends in the amount determined as set forth in Section 4(c), and no more. (b) Subject to Section 4(a), dividends shall be payable semiannually commencing quarterly in arrears on the 180th day following the Issue Date [January 15, April 15, July 15 and October 15] of each year (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as each, a “Dividend Payment Date”) commencing on [_____, 201_]. Each dividend will be payable to Holders of record as they appear in the stock register of the Corporation at the rate per annum close of 6% per share business on the Liquidation Preference; provided that[first] day of the month, whether or not a Business Day, in which the event that on any relevant Dividend Payment Date occurs (each, a “Record Date, ”). Each period from and including a Dividend Payment Date (or the Company date of the issuance of the Series C Preferred Stock) to but excluding the following Dividend Payment Date is not permitted herein referred to declare or pay such dividend or incur such liability either (x) as a matter of law or “Dividend Period.” (yc) under the terms of any loan agreementDividends, credit agreementif, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be when and as authorized and declared by the Board of Directors, shall not will be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereofpayable, and insteadfor each outstanding share of Series C Preferred Stock, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred at an annual rate of 4.00% 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)per share Liquidation Preference. The amount of dividends Dividends payable for any other period that is shorter or longer than a full semiannual dividend period Dividend Period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing If a scheduled Dividend Payment Date falls on and following a day that is not a Business Day, the Meeting End dividend will be paid on the next Business Day as if it were paid on the scheduled Dividend Payment Date, and no interest or other amount will accrue on the dividend so payable for the period from and after that Dividend Payment Date to the date the dividend is paid. No interest or sum of money in the event that dividends are lieu of interest will be paid on any dividend payment on shares of Common Series C Preferred Stock paid later than the scheduled Dividend Payment Date. (d) Dividends on the Series C Preferred Stock are non-cumulative. If the Board of Directors does not authorize and declare a dividend on the Series C Preferred Stock or if the Board of Directors authorizes and declares less than a full dividend in respect of any Dividend Period, the Holders will have no right to receive any dividend period or a full dividend, as the case may be, for the Dividend Period, and the Corporation will have no obligation to pay a dividend or to pay full dividends for that Dividend Period, whether or not dividends are authorized, declared and paid for any future Dividend Period with respect to the Series A C Preferred Stock or the Common Stock or any other class or series of Preferred Stock. To the extent the Corporation declares dividends on the Series C Preferred Stock and on any Parity Securities but does not make full payment of such declared dividends, then the Corporation shall allocate the dividend payments on a dividend shall be payable in respect pro rata basis among the Holders of each share the shares of Series A C Preferred Stock for such period in an amount equal to and the greater holders 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 any Parity Securities then convertibleoutstanding. For purposes of this Section 3(a)calculating the pro rata allocation of partial dividend payments, a dividend period with respect the Corporation shall allocate those payments so that the respective amounts of those payments bear the same ratio to a Dividend Payment Date is the period commencing each other as all accrued and unpaid dividends per share on the preceding Dividend Payment Date (or, if there Series C Preferred Stock and all Parity Securities bear to each other. The Corporation is no preceding Dividend Payment Date, not obligated to pay Holders of the Issue Date) and ending Series C Preferred Stock any dividend in excess of the dividends on the day immediately prior Series C Preferred Stock that are payable as described herein. Subject to the next Dividend Payment Date. Dividends foregoing, and not otherwise, such dividends (payable on a Dividend Payment Date shall in cash, stock or otherwise) as may be payable to Holders of record on the close of business on the day on which determined by the Board of Directors or a any duly authorized committee thereof declares of the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) Board of Directors may be declared and paid on any Junior Securities from time to the contrarytime out of any assets legally available therefor, and without limiting any other remedy available to the Company or any other party, dividends shares of Series C Preferred Stock shall not accrue or be payable entitled to participate in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddividend.

Dividends. (a) Holders of shares of Series A Preferred Stock shall Vistry Shareholders will be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive and retain: • any interim dividend that is announced, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofdeclared, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or made or becomes 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 by Vistry in respect of such Deferred the six-month period ended 30 June 2022; and If the Completion of the Combination occurs before the record date for any December Vistry Dividend, Countryside Shareholders will be entitled to receive and retain any December Vistry Dividend as shareholders in the Combined Group. If Completion of the Combination occurs after the record date for any December Vistry Dividend that is, on or prior to Completion, announced, declared, made, paid or becomes payable by Vistry, Countryside and Vistry have agreed that Countryside has the right to declare and pay a Countryside Equalisation 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 calculated in accordance with the foregoing paragraph and (iiEqualisation Formula described below) without any reduction to the product Combination Consideration. The Equalisation Formula is calculated per Countryside Share as the amount of (A) the aggregate dividends payable December Vistry Dividend per share Vistry Share multiplied by the Exchange Ratio. Vistry’s existing dividend policy is to pay out to a two times ordinary dividend cover in respect of Common Stock a full financial year. The typical timing for the record date for a dividend in such dividend respect of the six-month period times (B) ending 31 December, where declared, is during April each year. In respect of Countryside Shares, if, on or after the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes date of this Section 3(a)announcement and on or prior to the Effective Date, a dividend period any dividend, distribution, or other return of value is announced, declared, made, paid or becomes payable by Countryside, other than with respect to a Countryside Equalisation Dividend Payment Date that is calculated in accordance with the period commencing on Equalisation Formula, Vistry reserves the preceding Dividend Payment Date right (orwithout prejudice to any right Vistry may have, if there is no preceding Dividend Payment Datewith the consent of the Panel, to invoke Condition 3(g)(ii) in Part A of Appendix I to this announcement) to (at Vistry’s sole discretion): (i) reduce the Issue Date) and ending on the day immediately prior Combination Consideration by an amount equivalent to all or any part of such dividend, distribution, or other return of value, in which case any reference in this announcement to the next Dividend Payment Date. Dividends payable on Combination Consideration will be deemed to be 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) reference to the contrary, Combination Consideration as so reduced; or alternatively (ii) declare and without limiting any other remedy available pay an equalisation dividend to Vistry Shareholders so as to reflect the value attributable to the Company dividend, distribution, or other return of value as is announced, declared, made, paid or becomes payable by Countryside. Under the terms of the Co-operation Agreement, Vistry has undertaken not to declare, make or pay any dividend, distribution, or other party, dividends shall not accrue or be payable return of value other than as contemplated in respect of shares initially issued any Holder who is contractually obligated to appear and vote Vistry as above. Nothing in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder this announcement or the Affiliates of either) fails so Co- operation Agreement shall require Vistry to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendannounce, declare, make or pay any dividend.

Dividends. (a) Holders From and after the date of shares issuance of Series A each share of Preferred Stock Shares (the “Initial Issuance Date”), each holder of a Preferred Share (each, a “Holder” and collectively, the “Holders”) shall be entitled to cumulative receive dividends on (the Series A Preferred Stock payable semiannually“Dividends”), which dividends Dividends shall be declared paid by the Board of Directors or a duly authorized committee thereof, Company out of the assets of the Company funds legally available therefor, payable, subject to the conditions and other terms hereof, in shares of Common Stock or cash on the Stated Value (as defined below) of such Preferred Share at the Dividend Rate (as defined below), which shall be cumulative but not compounding and shall continue to accrue whether or not declared and whether or not in any fiscal year there shall be payable semiannually commencing net profits or surplus available for the payment of dividends in such fiscal year. Dividends on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share Preferred Shares shall commence accumulating 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 Initial Issuance 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 360365-day year consisting of twelve 30-day monthsand actual days elapsed. Commencing on and following Subject to Section 4(c), Dividends shall be payable quarterly, at the Meeting End DateHolder’s option, in the event that dividends are paid on cash or 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 first (ii1st) Dividend Date being the product date ninety (90) days from the Initial Issuance Date 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 first Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect Share to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable issued (each, a “Dividend Record Date”). If a Dividend Date is not a Business Day (as defined below), then the Dividend shall be due and payable on the Business Day immediately following such Dividend Date. Additionally, after the first Dividend Date, the Holder may request the payment of any accrued Dividends on any Conversion Date or the date of any Installment Redemption Payment (each, an “Optional Dividend Date”). (b) Dividends shall be payable on each Dividend Date, to the Holders of record of the Preferred Shares on the applicable Dividend Date, in shares of Common Stock (the “Dividend Shares”) so long as there has been no Equity Conditions Failure and so long as the delivery of Dividend Shares would not violate the provisions of Section 4(e); provided, however, that the Company may, at its option, pay Dividends on any Dividend Date in cash (the “Cash Dividends”) or in a combination of Cash Dividends and, so long as there has been no Equity Conditions Failure, Dividend Shares. The Company shall deliver a written notice (each, a “Dividend Election Notice”) to each Holder on the Dividend Notice Due Date (the date such notice is delivered to all of the Holders, the “Dividend Notice Date”), which notice (1) either (A) confirms that Dividends to be paid on such Dividend Date shall be paid entirely in Dividend Shares or (B) elects to pay Dividends as Cash Dividends, Dividend Shares, or as a combination of Dividend Shares and Cash Dividends and, in any event, specifies the amount of Dividends that shall be paid as Cash Dividends and the amount of Dividends, if any, that shall be paid in Dividend Shares and (2) certifies that there has been no Equity Conditions Failure as of such time, if any portion of the Dividends shall be paid in Dividend Shares. Notwithstanding anything in this Section 3(a) herein to the contrary, if no Equity Conditions Failure has occurred as of the Dividend Notice Date but an Equity Conditions Failure occurs at any time prior to the Dividend Date, (A) the Company shall provide each Holder a subsequent notice to that effect and without limiting (B) unless such Holder waives the Equity Conditions Failure, the Dividend payable to such Holder on such Dividend Date shall be paid as Cash Dividends to be paid to each Holder on a Dividend Date in Dividend Shares shall be paid in a number of fully paid and non-assessable shares (rounded to the nearest whole share, with 0.50 or more of a share being rounded up to the nearest whole share and 0.49 or less of a share being rounded down to the nearest whole share) of Common Stock equal to the quotient of (1) the amount of Dividends payable to such Holder on such Dividend Date less any other remedy available Cash Dividends paid and (2) the Conversion Price in effect on the applicable Dividend Date. (c) When any Dividend Shares are to be paid on an Dividend Date to any Holder, the Company shall (i) (A) provided that (x) the Company’s transfer agent (the “Transfer Agent”) is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program and (y) such Dividend Shares to be so issued are eligible for resale pursuant to Rule 144 (as defined in the Securities Purchase Agreement), credit such aggregate number of Dividend Shares to which such Holder shall be entitled to such Holder’s or its designee’s balance account with DTC through its Deposit and Withdrawal at Custodian system, or (B) if either of the immediately preceding clauses (x) or (y) is not satisfied, 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 Securities Purchase Agreement or to such address as specified by such Holder in writing to the Company at least two (2) Business Days prior to the applicable Dividend Date, a certificate, registered in the name of such Holder or its designee, for the number of Dividend Shares to which such Holder shall be entitled and (ii) with respect to each Dividend Date, pay to such Holder, in cash by wire transfer of immediately available funds, the amount of any other partyCash Dividend. The Company shall pay any and all taxes that may be payable with respect to the issuance and delivery of Dividend Shares. (d) In the event that a Holder requests the payment of Dividends on any Optional Dividend Date, dividends such Dividends shall not accrue or be payable in respect accordance with mechanisms set forth in Sections 4(c)(i)-(ii) and Section 5(b), as applicable. The Dividends shall be paid, at the Holder’s option in cash, in Dividend Shares, or any combination of shares initially issued any Holder who is contractually obligated cash and Dividend Shares, so long as there has been no Equity Conditions Failure and so long as the delivery of Dividend Shares would not violate the provisions of Section 4(e). Dividends to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order be paid to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder on an Optional Dividend Date in Dividend Shares shall be paid in a number of fully paid and non-assessable shares (or such transferor Holder or rounded to the Affiliates nearest whole share) of eitherCommon Stock equal to the quotient of (1) fails so to appear and vote in favor. Any shares issued the amount of Dividends payable to such Holders shall bear Holder on such Optional Dividend Date less any Dividends paid in cash and (2) the Stockholder Approval LegendConversion Price in effect on the applicable Optional Dividend Date.

Dividends. (ai) Holders The holders of shares of Series A Senior Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared by the Board of Directors or a duly authorized committee thereofwhen, out of the assets of the Company legally available therefor, as and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and 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 out of such Deferred Dividend (and, funds legally available for the avoidance payment of doubtdividends, such Deferred Dividend shall be payable in addition to, dividends (subject to Sections 3(a)(ii) and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount (iii) hereof) at a rate equal to the greater of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be (x) 13% per annum (computed on the basis of a 360-360 day year consisting year) or (y) the stated rate of twelve 30-day months. Commencing interest per annum payable on the Senior Subordinated Notes due 2008 of Thermadyne Inc. plus 300 basis points (the "Dividend Rate") on the Liquidation Value of each share of Senior Preferred Stock on and as of the most recent Dividend Payment Date (as defined below). In the event the Corporation is unable or shall fail to discharge its obligation to redeem all outstanding shares of Senior Preferred Stock pursuant to paragraph 5(c) or 5(d) hereof, the Dividend Rate shall increase by .25 percent per quarter (each, a "Default Dividend") for each quarter or portion thereof following the Meeting End date on which such redemption was required to be made until cured, provided that the aggregate increase shall not exceed 5%. Such dividends shall be payable in the manner set forth below in Sections 3(a)(ii) and (iii) quarterly on March 31, June 30, September 30, and December 31 of each year (unless such day is not a business day, in which event on the next succeeding business day) (each of such dates being a "Dividend Payment Date" and each such quarterly period being a "Dividend Period"). Such dividends shall be cumulative from the date of issue, whether or not in any Dividend Period or Periods there shall be funds of the Corporation legally available for the payment of such dividends. (ii) Prior to the fifth anniversary of the issuance of the Senior Preferred Stock (the "Cash Pay Date"), dividends shall not be payable in cash to holders of shares of Senior Preferred Stock but shall, subject to Section 3(b) hereof, accrete to the Liquidation Value in accordance with Section 4(a) hereof. (iii) Following the Cash Pay Date, each such dividend shall be payable in cash on the event that Liquidation Value per share of the Senior Preferred Stock, in equal quarterly amounts (to which the Default Dividend, if any, shall be added), to the holders of record of shares of the Senior Preferred Stock, as they appear on the stock records of the Corporation at the close of business on such record dates, not more than 60 days or less than 10 days preceding the payment dates thereof, as shall be fixed by the Board of Directors. Accrued and unpaid dividends are 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 date, not more than 45 days preceding the payment date thereof, as may be fixed by the Board of Directors. (b) At the written request of the holders of a majority of the shares of Senior Preferred Stock, the Corporation shall, commencing on the first Dividend Payment Date after such request and ending on the Cash Pay Date, be required to pay all dividends on shares of Common Senior Preferred Stock in any dividend period with respect by the issuance of additional shares of Senior Preferred Stock ("Additional Shares"). The Additional Shares shall be identical to the Series A all other shares of Senior Preferred Stock, then a dividend except as set forth in Section 4. For the purposes of determining the number of Additional Shares to be issued as dividends pursuant to this Paragraph (b), such Additional Shares shall be valued at their Applicable Liquidation Value as provided in Section 4(c). (c) Holders of shares of Senior Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of the cumulative dividends, as herein provided, on the Senior Preferred Stock. Except as provided in this Section 3, no interest, or sum of money in lieu of interest, shall be payable in respect of each share any dividend payment or payments on the Senior Preferred Stock that may be in arrears. (d) So long as any shares of Series A the Senior Preferred Stock are outstanding, no dividends, except as described in the next succeeding sentence, shall be declared or paid or set apart for payment on Parity Securities, for any period unless (to the extent such dividends are payable in cash) full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Senior Preferred Stock for such period in an amount equal all Dividend Periods terminating on or prior to the greater date of payment of the dividend on such class or series of Parity Securities. When (i) to the amount otherwise extent such dividends are payable in respect cash) dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends declared upon shares of such share of Series A the Senior Preferred Stock and all dividends declared upon any other class or series of Parity Securities shall (in accordance with each case, to the foregoing paragraph extent payable in cash) be declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Senior Preferred Stock and accumulated and unpaid on such Parity Securities. (iie) So long as any shares of the product of Senior Preferred Stock are outstanding, no dividends (Aother than dividends or distributions paid in shares of, or options, warrants or rights to subscribe for or purchase shares of, Junior Securities) the aggregate dividends payable per share of Common Stock in such dividend period times 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 (B) the number other than a redemption, purchase or other acquisition of shares of Common Stock made for purposes of an employee incentive or benefit plan of the Corporation or any subsidiary) (all such dividends, distributions, redemptions or purchases being hereinafter referred to as a "Junior Securities Distribution") for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation, directly or indirectly (except by conversion into which such share or exchange for Junior Securities), unless in each case (i) the full cumulative dividends on all outstanding shares of Series A the Senior Preferred Stock is then convertible. For purposes and any other Parity Securities shall (to the extent payable in cash) have been paid or set apart for payment for all past Dividend Periods with respect to the Senior Preferred Stock and all past dividend periods with respect to such Parity Securities and (ii) (to the extent payable in cash) sufficient funds shall have been paid or set apart for the payment of this Section 3(a), a the dividend for the current Dividend Period with respect to the Senior Preferred Stock and the current dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendParity Securities.

Dividends. (a) Holders of shares of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to No Loan Party will declare or pay such dividend any dividends or incur such liability either make any distributions on its Capital Stock (other than dividends or distributions payable in its own common stock) or redeem, repurchase or otherwise acquire or retire any of its Capital Stock at any time outstanding, except that (x) as any Subsidiary may declare and pay dividends or make distributions to the Borrower or to a matter Wholly-Owned Subsidiary of law or the Borrower, (y) under so long as no Default or Unmatured Default then exists or would result therefrom, if the terms Parent qualifies as a partnership for U.S. federal income tax purposes, it may pay dividends or make distributions to its shareholders in an aggregate amount not greater than the amount necessary for such shareholders to pay their actual state and U.S. federal income tax liabilities in respect of any loan agreement, credit agreement, guaranty, or related agreement, income allocated to such dividend (a “Deferred Dividend”) shall not be declared shareholders by the Board of DirectorsParent and (z) so long as no Default or Unmatured Default then exists or would result therefrom, shall the Borrower may pay dividends or make distributions to the Parent in an aggregate amount not be paid to exceed $10,000,000 per Fiscal Year solely to enable the Parent to pay, as the same becomes due and payable, its overhead expenses and any legal, accounting and other professional fees and expenses it may incur. Notwithstanding the foregoing, any Loan Party may (i) make any dividends or payable on such Dividend Payment Date and no liability shall be incurred in respect thereofdistributions to its respective parent company, and insteadthe Parent may make any dividends or distributions to its equity owners, at the Parent’s publicly announced dividend rate as of the date hereof (which rate is equal to $0.0675 per unit quarterly), so long as (x) after giving pro forma effect thereto, Availability was not less than $40,000,000 for any period of three consecutive days during the six-month period ending on the date on which such Deferred Dividend shall dividends or distributions were made and is not projected to be declared, become payable less than $40,000,000 during the six-month period immediately after the date on which such dividends or distributions are made (with such projected Availability to be determined by reference to the average projected Availability on the last day of each of the relevant six months) and be (y) the Fixed Charge Coverage Ratio is not less than 1.15 to 1.00 after giving pro forma effect to such distributions as if such distributions were paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date day of the relevant period and (ii) make any other dividends or distributions or redeem, repurchase or otherwise acquire or retire any of its Capital Stock so long as (x) after giving pro forma effect thereto, Availability was not less than $40,000,000 for any period of three consecutive days during the six-month period ending on the date on which the Company such dividends, distributions, redemptions, repurchases or other acquisitions or retirements of its Capital Stock were made and is not prohibited from declaringprojected to be less than $40,000,000 during the six-month period immediately after the date on which such dividends, paying distributions, redemptions, repurchases or other acquisitions or retirements of its Capital Stock are made (with such projected Availability to be determined by reference to the average projected Availability on the last day of each of the relevant six months) and incurring (y) the liability Fixed Charge Coverage Ratio is not less than 1.25 to 1.00 after giving pro forma effect to such distributions as if such distributions were paid on the first day of the relevant period; provided, however, that in respect the case of such Deferred Dividend either clause (andi) or (ii) above, for (1) no Default or Unmatured Default then exists or would result therefrom and (2) the avoidance Borrower Representative has delivered a certificate of doubtan Authorized Officer attesting to the matters set forth in clauses (i) and (ii) above, such Deferred Dividend shall be payable in addition toas applicable, and not showing in lieu ofreasonable detail all calculations with respect thereto. (b) No Loan Party shall directly or indirectly enter into or become bound by any agreement, instrument, indenture or other obligation (other than this Agreement and the other Loan Documents) that could directly or indirectly restrict, prohibit or require the consent 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 Person with respect to the Series A Preferred Stock, then payment of dividends or distributions or the making or repayment of intercompany loans by a dividend shall be payable in respect Subsidiary of each share of Series A Preferred Stock for such period in an amount equal the Borrower to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendBorrower.

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

Dividends. (a) Holders The Preferred Shares shall bear dividends at a rate of shares of Series A Preferred Stock five and one-quarter percent (5.25%) per annum, which shall be entitled to cumulative dividends accrue daily and compound on a quarterly basis from the Issuance Date (as defined below), on the Series A Preferred Stock payable semiannually, which Stated Value (as defined below) (the “Accruing Dividend”). Such dividends shall be accrue whether or not they have been declared by the Board of Directors and whether or a duly authorized committee thereofnot there are profits, out of the assets surplus or other funds of the Company legally available therefor, and shall be payable semiannually commencing on for the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, dividends. Such dividends shall not be paid or payable in cash, except, at the Company’s option, and subject to applicable law, such dividends may be payable quarterly in cash beginning on such Dividend Payment the five (5) year anniversary of the Issuance Date, with the period between the Issuance Date and no liability such five (5) year anniversary being defined as the “Guaranteed Term”. The Accruing Dividend shall cease to accrue upon the end of the Guaranteed Term. (b) To the extent that, during the Guaranteed Term, (i) the Company undergoes any liquidation, dissolution, winding up, or Fundamental Transaction, or (ii) the Company elects to effect a Mandatory Conversion of the Preferred Shares, (each, a “Make Whole Event”), then, immediately prior to the effective time of such Make Whole Event and without further action by any party, the amount of Accruing Dividend accrued on the Preferred Shares shall automatically be increased by an amount equal to any additional Accruing Dividend that would have otherwise accrued on the Preferred Shares between the date of the Make Whole Event and the end of the Guaranteed Term (the “Make Whole Payment”), and the Accruing Dividend shall thereafter cease to accrue. (c) In addition, subject to the rights of the holders, if any, of the shares of other classes or series of Preferred Stock of the Company that are of equal rank with the Preferred Shares as to payments of Preferred Funds (as defined below) (the “Pari Passu Shares”), if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of the Company’s common stock, par value $0.01 per share (“Common Stock”), by way of return of capital or otherwise (including any dividend or other distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement or other similar transaction) (a “Distribution”), at any time after the Issuance Date, then, in each such case, each holder of Preferred Shares shall be incurred in respect thereofentitled to receive such Distribution, 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 declaringshall make such Distribution to such holder, paying and incurring the liability exactly as if such holder had converted such holder’s Preferred Shares in respect of such Deferred Dividend full (and, as a result, had held all of the Conversion Shares (as defined below) that such holder would have received upon such conversion, without regard to any limitations or restrictions on conversion) immediately prior to the record date for such Distribution, or if there is no record date therefor, immediately prior to the effective date of such Distribution (but without the holder’s actually having to so convert such holder’s Preferred Shares). For the avoidance of doubt, such Deferred Dividend payments under the preceding sentence 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 made concurrently with the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following Distribution to the Meeting End Date, in the event that dividends are paid on shares holders of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Dividends. (a) Holders The holders of shares of Series A Floating Rate Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be as and if declared by the Board of Directors or a duly authorized committee thereofof the Company, out of the assets of the Company any funds legally available thereforfor the purpose, dividends which accrue under this Paragraph 4, which shall be paid quarterly in arrears, on the fifteenth day of each April, July, October, and January, with respect to the preceding calendar quarter. (b) The shares of Series A Floating Rate Preferred Stock shall be payable semiannually commencing on accrue dividends upon the 180th day following Stated Value of such shares at a rate equal to the Issue Date "Reference Rate" (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (xhereinafter defined) 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 effect on the first succeeding Dividend Payment Date on which day of the Company is second month of each calendar quarter. However, if from time to time any accrued dividends have not prohibited from declaringbeen timely paid in accordance with this Paragraph 4 and are in arrears, paying and incurring then the liability in respect shares of Series A Floating Rate Preferred Stock shall accrue dividends upon the Stated Value of such Deferred Dividend shares at the "Arrearage Rate" (andas hereinafter defined) as in effect on the first day of each calendar quarter, for provided, that the avoidance of doubt, such Deferred Dividend Arrearage Rate shall apply from the date from which dividends become in arrears until all dividends then due and owing have been paid. Accrued dividends shall be payable in addition to, calculated 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 paid upon the basis of a 360-360 day year consisting and equal calendar quarters of twelve 30-day months90 days each. (c) Unpaid dividends shall cumulate. Commencing on and following the Meeting End DateNo interest, or sum of money in the event that dividends are paid on shares lieu of Common Stock in any dividend period with respect to the Series A Preferred Stockinterest, then a dividend shall be payable in respect of each share any dividend payment or payments which may be in arrears. (d) No cash dividend or other cash distribution shall be declared or paid on shares of common stock or on other stock of the Corporation ranking junior to the 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 Floating Rate Preferred Stock in accordance with the foregoing paragraph payment of dividends unless 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 until all accrued and unpaid Series A Floating Rate Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) dividends have been concurrently declared and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendconcurrently paid.

Dividends. (ai) Holders When, as, and if declared by the Board, out of shares funds legally available for that purpose, the holders of Series A D Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which receive before any dividends shall be declared and paid or set aside for Common Stock, dividends, which shall accrue on a daily basis at the Applicable Dividend Rate on the sum of the Original Cost of a share of Series D Preferred Stock, plus all accumulated and unpaid dividends thereon, payable on each September 30 and March 31 (each, a "Preferred Dividend Payment Date"), the first such Preferred Dividend Payment Date being the first Preferred Dividend Payment Date following the ninth anniversary of the First Closing Date. Dividends shall accrue at the Applicable Dividend Rate regardless of whether the Board has declared a dividend payment or whether there are any profits, surplus or other funds of the Corporation legally available for dividends. Any dividends which accrue pursuant to this Section 4(a)(i) and which are not paid prior to the next succeeding Preferred Dividend Payment Date shall be classified as "accumulated dividends" and shall remain "accumulated and unpaid dividends" until paid or otherwise satisfied pursuant to this Article XII. Dividends on each share of Series D Preferred Stock shall accrue pursuant to this Section 4(a)(i) from and including the ninth anniversary of the First Closing Date to and including the date such share is converted or redeemed in full and all accrued but unpaid dividends thereon are also converted or paid in full. All payments in cash due in cash under this Section 4(a) to any holder of shares of Series D Preferred Stock shall be made to the nearest cent. (ii) In addition to the rights to receive dividends pursuant to clause (i) above, when, as and if declared by the Board of Directors or a duly authorized committee thereofBoard, out of the assets of the Company funds legally available thereforfor the purpose, and the holders of Series D Preferred Stock shall be payable semiannually commencing on the 180th day following the Issue Date (entitled to share in any dividends declared and paid upon or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, set aside for the avoidance of doubt, Common Stock on a ratable basis based upon the Common Stock Equivalents represented by such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). Series D Preferred Stock. (iii) 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 D Preferred Stock on each Preferred Dividend Payment Date shall be paid to the holders of shares of the Preferred Stock as they appear on the stock records of the Corporation on such date (the "Preferred Record Date") as shall be fixed by the Board, which Preferred Record Date shall not be more than 60 days prior to the applicable Preferred Dividend Payment Date and shall not precede the date upon which the resolution fixing such Preferred Record Date is adopted, and if the Board shall not fix a Preferred Record Date, the Preferred Record Date shall be deemed to be the same date as the applicable Preferred Dividend Payment Date. (iv) Except as otherwise provided herein, if at any time the Corporation pays less than the total amount of dividends then accrued with respect to the Series D Preferred Stock, then a dividend such payment shall be payable in respect distributed ratably among the holders of each share of the Series A D 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) based upon the number of shares of Common Stock into which such share of Series A D Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendheld by each holder.

Dividends. (a) Holders Prior to the expiration or earlier termination of shares this Agreement, the holders of Series A Preferred Stock Voting Trust Certificates shall be entitled to cumulative receive payments equal to the cash dividends, if any, received by the Trustee from the Corporation, ratably in proportion to their respective number of Beneficial Shares then outstanding. In lieu of receiving such cash dividends on and paying the Series A Preferred Stock payable semiannuallysame to the holders of Voting Trust Certificates, which the Trustee may instruct the Corporation in writing to pay such cash dividends directly to the holders of Voting Trust Certificates. Upon such instructions being given by the Trustee to the Corporation, and unless explicitly limited or until revoked by the Trustee, all liability of the Trustee with respect to such cash dividends shall be declared terminate. The Trustee may at any time revoke such instructions and by written notice to the Board of Directors or a duly authorized committee thereof, out of Corporation direct it to make dividend payments to the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) Trustee. The Corporation shall not be declared liable to any holder of Voting Trust Certificates or to any person claiming to be entitled to any such cash dividends by reason of following ny written instructions of 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 Trustee. (b) If any dividend in respect of such Deferred Dividend (and, for Restricted Securities owned of record by 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 Trustee 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 Datepaid, in whole or in part, in capital stock of the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred StockCorporation, 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 Trustee shall hold, subject to the terms of this Agreement, the certificate or certificates for shares of such share stock which are received by him on account of Series A Preferred Stock in accordance with the foregoing paragraph such dividend; and (ii) the product holder of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) each Voting Trust Certificate shall be entitled to receive a Voting Trust Certificate issued under this Agreement for the number of shares of Common Stock into which capital stock received as such share dividend in respect of Series A Preferred Stock is then convertible. For purposes such holder's Beneficial Shares. (c) Holders entitled to receive the dividends above shall be those registered as holders of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing Voting Trust Certificates on the preceding Dividend Payment Date (books of the Trustee at the close of business on the record date fixed by the Corporation for determining those holders of its capital stock entitled to receive such dividends or, if there is the Corporation has fixed no preceding Dividend Payment Datesuch record date, the Issue Date) and ending then on the day immediately prior date fixed by the Trustee for the purpose of determining the holders of Voting Trust Certificates entitled to receive such payment or distribution, those registered as such at the next Dividend Payment Date. Dividends payable close of business on a Dividend Payment Date the date so fixed by the Trustee; PROVIDED, that if no such record date is set by the Corporation or the Trustee, then in such event the record date for determining shall be payable to Holders of record on the close of business on the day on which the Board preceding such payment of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legenddistribution.

Dividends. (a) Commencing on the Issue Date, Holders of shares of outstanding Series A E Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be when, as and if declared by the Board of Directors or a duly authorized committee thereof, out of the assets funds of the Company Corporation legally available therefor, subject to Section 4(f), pari passu with (and shall be payable semiannually commencing on otherwise with the 180th day following same treatment in all respects as that of) the Issue Date Corporation’s Mandatorily Convertible Cumulative Perpetual Preferred Stock, Series D (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment DateSeries D Preferred Stock”) cumulative dividends in arrears at the rate per annum of 611% per share on (i) the Liquidation Preference; provided thatAmount (equivalent to $1,100.00 per annum per share) and (ii) the amount of accrued and unpaid dividends from any prior Dividend Period on each such share of Series E Preferred Stock, payable semi-annually on each Dividend Payment Date beginning on the Dividend Payment Commencement Date until the Conversion Date. Dividends shall be payable, at the option of the Corporation, in cash or in kind through the event issuance of additional shares of Series E Preferred Stock (a “PIK Dividend”). Notwithstanding the foregoing sentence, if due to the prohibition on conversion in the hands of a Holder that is not a Permitted Transferee as provided in Section 5(a) below, any outstanding shares of Series E Preferred Stock are not converted on any the Conversion Date, each such share of Series E Preferred Stock, while outstanding, shall, upon and following the Conversion Date bear cumulative dividends payable, when, as and if declared by the Corporation’s board of directors, at the same date and in amounts equal to the number of shares of Common Stock into which each share of Series E Preferred Stock is then convertible, multiplied by the dividend declared and payable per share of Common Stock. Dividends will be payable on a Dividend Payment Date to Holders that are Record Holders of the applicable Record Date with respect to such Dividend Payment Date, but only to the Company is not permitted extent a dividend has been declared to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Date. If any Dividend Payment Date on which the Company is not prohibited from declaringa Business Day, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date)date shall be paid on the next Business Day without adjustment and without interest. The amount Accumulations of dividends on shares of Series E Preferred Stock shall not bear interest. Dividends payable for any period other period that is shorter or longer than a full semiannual dividend period will Dividend Period (based on the number of actual days elapsed during the period) shall be computed on the basis of days elapsed over a 360-day year consisting of twelve 30-day months. (b) Dividends on the Series E Preferred Stock are cumulative. Commencing To the extent that the Board of Directors does not declare and pay dividends on and following the Meeting End Series E Preferred Stock for a Dividend Period prior to the related Dividend Payment Date, in the event that dividends are paid full or otherwise, such unpaid dividend shall accrue and shall compound on shares of Common Stock in any dividend period with respect each subsequent Dividend Payment Date until paid. (c) Prior to the Series A Preferred StockConversion, then a no dividend or distribution shall be payable in respect declared or paid upon, or any sum set apart for the payment of each dividends upon, any outstanding share of any Common Stock. (d) So long as any share of Series A E Preferred Stock remains outstanding, no dividend or distribution shall be declared or paid on the Common Stock or any other shares of Junior Stock or Parity Stock, subject to this Section 4(d) in the case of Parity Stock, and no Common Stock, Junior Stock or Parity Stock shall be, directly or indirectly, purchased, redeemed or otherwise acquired for consideration by the Corporation or any of its subsidiaries unless all dividends on all outstanding shares of the Series E Preferred Stock for such period any Dividend Period have been declared and paid in an amount equal full (or have been declared and a sum sufficient for the payment thereof has been set aside for the benefit of the Holders of shares of Series E Preferred Stock on the applicable Record Date). The foregoing limitation shall not apply to the greater of (i) the amount otherwise payable in respect any dividends or distributions of such share of Series A Preferred rights or Junior Stock in accordance connection with the foregoing paragraph and a shareholders’ rights plan or any redemption or repurchase of rights pursuant to any shareholders’ rights plan; (ii) the product acquisition by the Corporation or any of its subsidiaries of record ownership in Junior Stock or Parity Stock for the beneficial ownership of any other persons (Aother than for the beneficial ownership by the Corporation or any of its subsidiaries), including as trustees or custodians; and (iii) the exchange or conversion of Junior Stock for or into other Junior Stock or of Parity Stock for or into other Parity Stock (with the same or lesser aggregate liquidation amount) or Junior Stock, in each case, solely to the extent required pursuant to binding contractual agreements entered into prior to the Issue Date or any subsequent agreement for the accelerated exercise, settlement or exchange thereof for Common Stock. (e) When dividends payable per share are not paid (or declared and a sum sufficient for payment thereof set aside for the benefit 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 Holders thereof on the preceding applicable Record Date) on any Dividend Payment Date (or, if there is no preceding in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within a Dividend Period related to such Dividend Payment Date) in full upon shares of Series E Preferred Stock and any shares of Parity Stock, all dividends declared on shares of Series E Preferred Stock and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to such Dividend Payment Date) shall be declared pro rata so that the respective amounts of such dividends declared shall bear the same ratio to each other as full dividends payable on the Series E Preferred Stock for such Dividend Period and all Parity Stock payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to such Dividend Payment Date) (subject to their having been declared by the Board of Directors out of legally available funds and including, in the case of Parity Stock that bears cumulative dividends, all accrued but unpaid dividends) bear to each other. If the Board of Directors determines not to pay any dividend or a full dividend on a Dividend Payment Date, the Issue Corporation will provide written notice to the Holders of shares of Series E Preferred Stock prior to such Dividend Payment Date. (f) and ending If the Conversion Date or Partial Conversion Date with respect to any share of Series E Preferred Stock is on the day immediately or prior to the next Dividend Payment Commencement Date. Dividends payable , the Holder of such share of Series E Preferred Stock will not have any right to receive any dividends on the Series E Preferred Stock converted on or before such Conversion Date or Partial Conversion Date with respect to such Dividend Period, whether upon Conversion or otherwise. (g) Should the Corporation elect to pay any dividend as a PIK Dividend, the number of shares of Series E Preferred Stock to be issued in payment of such PIK Dividend Payment Date with respect to each outstanding share of Series E Preferred Stock shall be payable determined by dividing (i) the amount of the dividend so declared by (ii) the Liquidation Preference. To the extent that any PIK Dividend would result in the issuance of a fractional share of Series E Preferred Stock to any Holder, then the amount of such fraction multiplied by the Liquidation Preference shall be paid in cash (unless there are no legally available funds with which to make such cash payment, in which event such cash payment shall be made as soon as possible thereafter). The Corporation shall at all times reserve and keep available out of its authorized and unissued Series E Preferred Stock, the full number of shares of Series E Preferred Stock required for purposes of paying all PIK Dividends that may become payable. No fractional shares of Common Stock shall be delivered to Holders in payment or partial payment of record on a dividend. (h) Prior to the close of business on the day on which Conversion Date or Partial Conversion Date, shares of Common Stock issuable upon the Board Mandatory Conversion or Partial Conversion thereof, as applicable, or other securities issuable upon conversion of, such share of Directors or a duly authorized committee Series E Preferred Stock shall not be deemed outstanding for any purpose, and the Holder thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) shall have no rights with respect to the contraryCommon Stock or other securities issuable upon conversion (including voting rights, and without limiting any other remedy available rights to respond to tender offers for the Company or any other party, dividends shall not accrue or be payable in respect Common Stock) by virtue of shares initially issued any Holder who is contractually obligated to appear and vote in favor holding such share of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendSeries E Preferred Stock.

Dividends. (a) Subject to Section 3(c), from and after the Initial Issue Date, dividends shall, with respect to each outstanding share of Series A Preferred Stock, accrue on the Accreted Value at the Dividend Rate (or the Dividend Rate, plus the Payment Default Rate pursuant to Section 3(b) (if applicable), plus the Registration Delay Rate pursuant to Section 3(g) (if applicable)) for each Dividend Period (as defined below) to and including the next Dividend Payment Date. Such dividends (“Cash Dividends”) shall be payable only when, as and if declared by the Board, and when so declared and paid, Cash Dividends shall be paid in 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 shares Business on the relevant Dividend Record Date. Dividends on the Series A Preferred Stock shall accumulate and become Accrued Dividends on a day-to-day basis from the last day of the most recent fiscal quarter, or if there has been no prior full fiscal quarter, from the Initial Issue Date, until Cash Dividends are paid pursuant to this Section 3(a) in respect of such Accrued Dividends or pursuant to Sections 3(b) and 3(c). 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. The period from the Initial Issue Date to and including the first Dividend Payment Date and each period from but excluding a Dividend Payment Date to and including the following Dividend Payment Date is herein referred to as a “Dividend Period.” (b) Notwithstanding anything to the contrary in Section 3(a), if all or a portion of a Cash Dividend is not declared and paid in accordance with Section 3(a) on a Dividend Payment Date for any fiscal quarter (or portion thereof for which a Cash Dividend is due) ending on or prior to December 31, 2020 (the “Initial Period”), then with respect to such portion of any Cash Dividend that is not declared and paid, the dividends shall accrue and accumulate at the Dividend Rate and the Accreted Value of each outstanding share of Series A Preferred Stock shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannually, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on 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 automatically increase on such Dividend Payment Date by such amount that was accrued. If the Corporation fails to pay in cash in full all or any part of any Cash Dividend when due and no liability shall be incurred payable in respect thereofaccordance with Section 3(a) for any quarter following the Initial Period (such failure, a “Payment Default”), then from and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on after the first succeeding Dividend Payment Date on which day of the Company immediately following fiscal quarter and continuing until such failure is not prohibited from declaring, paying and incurring the liability cured by payment in respect full in cash of such Deferred Dividend all arrearages (and, for the avoidance of doubt, including arrearages attributable to the Payment Default Rate), (i) the Cash Dividends shall accrue at the Dividend Rate plus the Payment Default Rate and (ii) the amount of such Deferred accrued but unpaid cash dividends shall constitute arrearages that shall accrue and accumulate (and compound quarterly) at the Dividend shall be Rate plus the Payment Default Rate until paid. (c) Dividends payable under Section 3(a) or future dividends calculated in addition todetermining the Fundamental Change Cash Price, and not any increase in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment DateAccreted Value under Section 3(b) (or deemed increase in Accreted Value under Section 3(d). The amount of dividends payable ) for any other period that is shorter or longer less than a full semiannual quarterly dividend or accretion period will (based upon the number of days elapsed during the period), shall each be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date. (d) Under this Certificate of Designations, in calculating the event that dividends are paid on (i) number of shares of Class A Common Stock in any dividend period with respect to the issued upon conversion of a share of Series A Preferred StockStock (including, then a dividend shall be payable in respect for the avoidance of doubt, the Conversion Rate), (ii) redemption price per share of Series A Preferred Stock (including, for the avoidance of doubt, the Holder Optional Redemption Price and the A-12 Corporation Optional Redemption Price) or (iii) the Fundamental Change Cash Price, the Accreted Value of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) shall be increased by the amount otherwise payable of Accrued Dividends during the then-current Dividend Period regardless of whether, at the time of such conversion or redemption (including in respect of such share a Fundamental Change Put), a dividend payable on the next 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 (including in accordance respect of a Fundamental Change Put) shall not be entitled to receive any payment of dividends declared pursuant to Section 3(a) in respect of the Dividend Period in which such conversion or redemption occurs notwithstanding that a Dividend Record Date may have occurred for the payment of such dividends prior to such conversion or redemption. (e) Notwithstanding anything herein to the contrary, the Corporation shall be prohibited from paying a dividend on any Junior Stock while any Accrued Dividends are outstanding. (f) Holders of shares of Series A Preferred Stock shall not be entitled to any dividend other than as set forth in this Section 3. (g) If the Corporation fails to cause a registration statement with respect to the foregoing paragraph Registrable Securities (as defined in the Registration Rights Agreement) to be declared effective by [ ] 120 days from the closing of the transactions contemplated by the Securities Purchase Agreement. (such failure, a “Registration Delay”), then from and after the first day of the immediately following fiscal quarter and continuing until such failure is cured by the effectiveness of a registration statement pertaining to the Registrable Securities, (i) the Cash Dividends shall accrue at the Dividend Rate plus the Registration Delay Rate and (ii) the product amount of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, accrued but unpaid cash dividends shall not constitute arrearages that shall accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made accumulate (and compound quarterly) at a meeting of stockholders of the Company in order to effect Dividend Rate plus the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendRegistration Delay Rate until paid.

Dividends. (a) Holders The Holder of shares of Series A the Convertible Preferred Stock shall will be entitled to cumulative receive, when, as and if dividends on the Series A Preferred Stock payable semiannually, which dividends shall be are declared by the Board of Directors or a duly authorized committee thereof, out of the assets funds of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following cumulative preferential dividends from the Issue Date (of the Convertible Preferred Stock accruing at the rate of $1.0584 per share of Convertible Preferred Stock per annum, or the following Business Day $0.5292 per share of Convertible Preferred Stock semi-annually, payable semi-annually in arrears on June 15 and December 15 of each year, commencing on December 15, 2004 or, if any such payment date is not a Business Day) , on the next succeeding business day (each such date being referred to herein as each, a “"Dividend Payment Date”) at "), to the rate per annum Holders of 6% per share record on the Liquidation Preference; provided that, in 10th day prior to the event that on any relevant Dividend Payment Date (each, a "Record Date"). Accrued but unpaid dividends, the Company is not permitted to declare or pay if any, may be paid on such dividend or incur such liability either (x) dates 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 determined by the Board of Directors, shall not be paid or . (b) Dividends 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 Convertible Preferred Stock will be computed on the basis of a 360-day year consisting of twelve 30-day monthsmonths and will be deemed to accrue on a daily basis. Commencing Dividends on the Convertible Preferred Stock will accrue from the Issue Date. (c) Any dividend on the Convertible Preferred Stock shall be, at the option of the Company, payable (i) in cash, or (ii) through the issuance of a number of additional shares (including fractional shares) of Convertible Preferred Stock (the "Additional Shares") equal to the dividend amount divided by the Liquidation Preference of such Additional Shares. (d) The Convertible Preferred Stock will not be redeemable unless all dividends accrued through such redemption date shall have been paid in full. Notwithstanding anything to the contrary herein contained, the Company shall not be required to declare or pay a dividend if another person (including, without limitation, any of its subsidiaries) pays an amount to the Holders equal to the amount of such dividend on behalf of the Company and, in such event, the dividend will be deemed paid for all purposes. (e) Dividends on the Convertible Preferred Stock will accrue whether or not the Company has earnings or profits, whether or not there are funds legally available for the payment of such dividends and following whether or not dividends are declared. Dividends will accumulate to the Meeting End Dateextent they are not paid on the Dividend Payment Date for the semi-annual period to which they relate. Accumulated unpaid dividends will accrue and cumulate dividends at a rate of 12% per annum. The Company will take all reasonable actions required or permitted under Delaware law to permit the payment of dividends on the Convertible Preferred Stock. (f) 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 Convertible Preferred Stock with respect to any dividend period unless all dividends for all preceding dividend periods have been declared and paid upon, or declared and a sufficient sum set apart for the payment of such dividend upon, all outstanding shares of Convertible Preferred Stock. Unless full cumulative dividends on all outstanding shares of Convertible Preferred Stock due for all past dividend periods shall have been declared and paid, or declared and a sufficient sum for the payment thereof set apart, then: (i) no dividend (other than, in the event that dividends are paid on case of Junior Capital Stock, a dividend payable solely in shares of Common Junior Capital Stock in any dividend period with respect or options, warrants or rights to the Series A Preferred purchase Junior Capital Stock, then or in the case of Parity Capital Stock, a dividend payable solely in shares of Junior Capital Stock or Parity Capital Stock or options, warrants or rights to purchase Junior Capital Stock or Parity Capital Stock) shall be payable in respect declared or paid upon, or any sum set apart for the payment of each share dividends upon, any shares of Series A Preferred Parity Capital 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 or Junior Capital Stock; (ii) no other distribution shall be declared or made upon, or any sum set apart for the product payment of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of any distribution upon, any shares of Common Parity Capital Stock or Junior Capital Stock; (iii) no shares of Parity Capital Stock or Junior Capital Stock or any warrants, rights, calls or options exercisable for or convertible into which any Parity Capital Stock or Junior Capital Stock shall be purchased, redeemed or otherwise acquired or retired for value (excluding an exchange for shares of other Parity Capital Stock or Junior Capital Stock or a purchase, redemption or other acquisition from the proceeds of a substantially concurrent sale of Parity Capital Stock or Junior Capital Stock, and repurchases of Capital Stock held by an employee in connection with the termination of such share employee's termination) by the Company or any of Series A its subsidiaries; and (iv) 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 a Parity Capital Stock or Junior Capital Stock or any warrants, rights, calls or options exercisable for or convertible into any Parity Capital Stock or Junior Capital Stock by the Company or any of its subsidiaries. Holders of the Convertible Preferred Stock is then convertible. For purposes shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of this Section 3(a)the full cumulative dividends as herein described. (g) Dividends on account of arrears and dividends in connection with any optional redemption may be declared and paid at any time, a dividend period with respect without reference to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding any regular Dividend Payment Date, the Issue Date) and ending to holders of record on the day immediately such date, not more than 45 days prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall payment thereof, as may be payable to Holders of record on the close of business on the day on which fixed by the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendCompany.

Dividends. (a) Holders of So long as any shares of Series B Preferred Stock shall be outstanding, the holders of such Series B Preferred Stock shall be entitled to receive, if legally payable by the Board of the Company, 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 Dividend Rate on the Liquidation Preference hereunder, payable semi-annually on the first Business Day of July and January of each year, commencing July 1, 1998. If the Board of the Company cannot legally declare or pay such dividends, then such dividends shall be 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 legally available for the payment of those dividends, and shall be paid-in-kind as soon as such dividends are legally payable. Any such dividend payable for the 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 dividend payable for the period after the date hereof shall be payable based on the Liquidation Preference set forth herein. Dividends may not be paid in cash. (b) So long as any shares of Series B Preferred Stock shall be outstanding, then, without the affirmative vote of the Required Holders, (i) no dividend whatsoever shall be paid or declared, and no distribution shall be made, on account of any Common Stock or Series A Preferred Stock and (ii) no shares of Common Stock or Series A Preferred Stock shall be entitled to cumulative dividends on repurchased, redeemed or acquired by the Series A Preferred Stock payable semiannuallyCompany, which dividends and no funds shall be declared by the Board of Directors paid into or set aside or made available for a duly authorized committee thereof, out of the assets of the Company legally available therefor, and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, sinking fund for the avoidance of doubtpurchase, 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 redemption or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendacquisition thereof.

Dividends. (a) Holders The holders of the Class A Preferred shares, in priority to the holders of Common shares and any other class or series of shares of Series ranking junior to the Class A Preferred Stock shares, shall be entitled to receive and the Company shall pay thereon out of monies of the Company properly applicable to the payment of dividends, cumulative cash dividends, or dividends on payable as a PIK Dividend in the Series circumstances set forth below, at the rate of eight percent (8%) of the Class A Preferred Stock Share Original Issue Price per share, per annum, accruing (but not compounding) daily, payable semiannuallyonly upon the liquidation, which dissolution or winding-up of the Company or, at any time prior to the liquidation, dissolution or winding-up of the Company, payable if, as and when declared by the Board of Directors. The Board of Directors shall deliver notice to each of the holders of the Class A Preferred shares at least fourteen (14) days prior to any declaration by the Board of Directors of the dividends shall provided to be paid under this Section 27.3(4) if such dividends are to be declared by the Board of Directors prior to the liquidation, dissolution or a duly authorized committee thereof, out winding-up of the assets Company. Each holder of Class A Preferred shares may, in its sole discretion, receive all or any portion of the Company legally available thereforamount of the cumulative dividends payable hereunder in the form of a whole number of further Class A Preferred shares ("PIK Dividends"), and shall to be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) issued at the rate per annum Fair Market Value of 6% per share on such Class A Preferred shares immediately prior to the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be 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 date on which the Company dividend is not prohibited from declaring, paying and incurring the liability in respect declared; provided that such holder has delivered an election to receive all or a portion of such Deferred Dividend (anddividends in PIK Dividends, for specifying the avoidance amount of doubt, such Deferred Dividend shall dividends to be payable in addition to, and not in lieu of, any dividend which would ordinarily PIK Dividends if less than all of such dividends are to be payable on such succeeding Dividend Payment Date). The in PIK Dividends, at least seven (7) days prior to the date provided for declaration of the dividend Any amount of dividends payable for any other period to a holder of Class A Preferred shares that has elected to receive PIK Dividends that is shorter or longer less than a full semiannual dividend period will whole multiple of the then applicable issuance price for such Class A Preferred shares shall be computed on the basis of a 360-day year consisting of twelve 30-day monthspaid in cash. Commencing on and following the Meeting End Date, in In the event that dividends PIK Dividends are paid on payable pursuant to a liquidation, dissolution or winding-up of the Company or a Deemed Liquidation Event, the shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend issuable as PIK Dividends shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal deemed to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day have been issued immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors such liquidation, dissolution, winding-up or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendDeemed Liquidation Event.

Dividends. (a) Holders of shares The holders of Series A B Preferred Stock Shares shall be entitled to cumulative dividends on the Series A Preferred Stock payable semiannuallyreceive, which dividends shall be declared by the Board of Directors or a duly authorized committee thereof, out of the assets of the Company legally available therefor, when and shall be payable semiannually commencing on the 180th day following the Issue Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall out of funds legally available for the payment of dividends, dividends per Series B Preferred Share payable in cash at the applicable Annual Dividend Rate; provided, however, that if any dividend payable on any Dividend Payment Date is not be paid or in full in cash on such Dividend Payment Date, the amount payable as dividends on such Dividend Payment Date and no liability shall be incurred that is not paid in respect thereof, and instead, cash on such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date shall automatically, without any further action by the Corporation, be added to the Liquidation Preference on which the Company is relevant Dividend Payment Date at the Annual Dividend Rate applicable with respect to dividends not prohibited from declaringpaid in cash; provided further, paying however, that the dividend payment payable on the initial Dividend Payment Date shall include 56.9% of the accrued and incurring unpaid dividends on Series A Preferred Shares being exchanged pursuant to the liability Exchange Agreement through and including the Issue Date. Each such dividend payable in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend cash shall be payable in addition toarrears to the holders of record of the Series B Preferred Shares, as they appear on the stock records of the Corporation at the close of business on each record date, which shall not be more than 30 days preceding the applicable Dividend Payment Date (the “Dividend Payment Record Date”), as shall be fixed by the Board of Directors. The amount of accrued and unpaid dividends on any Series B Preferred Stock at any date shall be the amount of any dividends thereon, calculated at the applicable Annual Dividend Rate, to and including such date, whether or not in lieu ofearned or declared, which have not been paid; provided that an amount equal to any dividend which would ordinarily be payable that was not paid in cash on such succeeding any applicable Dividend Payment DateDate shall be added to the Liquidation Preference in accordance with this Section 3(a) and such dividend not paid in cash and so added shall not be considered as an accrued and unpaid dividend for any purposes hereof. (b) The amount of dividends payable based on the Annual Dividend Rate for each full Dividend Period for the Series B Preferred Shares shall be computed by dividing the applicable Annual Dividend Rate by four (4). The amount of dividends payable for the initial Dividend Period, or any other period that is shorter or longer than a full semiannual dividend period will Dividend Period, on the Series B Preferred Shares shall be computed on the basis of four 90-day quarters and a 360-day year consisting year. Holders of twelve 30-day months. Commencing on and following the Meeting End DateSeries B Preferred Shares shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of accrued and unpaid dividends, as herein provided, on the event that Series B Preferred Shares. (c) All dividends are paid on shares of Common Stock in any dividend period with respect to Series B Preferred Shares shall be paid pro rata. (d) So long as any Series B Preferred Shares are outstanding, no dividends, except as described in the immediately following sentence, shall be authorized and declared and paid or set apart for payment on any series or class or classes of Parity Shares for any period unless full accrued and unpaid dividends have been or contemporaneously are authorized and declared and paid in cash or authorized and declared and a sum sufficient for the payment thereof set apart for such payment on the Series A B Preferred StockShares for the immediately preceding Dividend Period and on the Parity Shares for the immediately preceding period applicable to the Parity Shares. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, for the Dividend Period referred to in the immediately preceding sentence, then a dividend all dividends authorized and declared upon Series B Preferred Shares and all dividends authorized and declared upon any other series or class or classes of Parity Shares shall be payable authorized and declared ratably in respect of each share of Series A Preferred Stock for such period in an amount equal proportion to the greater respective amounts of dividends accrued and unpaid on the Series B Preferred Shares and such class or classes or series of Parity Shares. (ie) So long as any Series B Preferred Shares are outstanding, no dividends shall be authorized and declared and paid or set apart for payment and no other distribution shall be authorized and declared and made upon Junior Shares (other than dividends or other distributions paid solely in Junior Shares, or options, warrants or rights to subscribe for or purchase Junior Shares), nor shall any Junior Shares be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of Common Shares made for purposes of and in compliance with requirements of an employee incentive or benefit plan of the amount otherwise payable in respect Corporation or any subsidiary) for any consideration (or any moneys to be paid to or made available for a sinking fund for the redemption of any shares of such share of stock) by the Corporation, directly or indirectly (except by conversion or exercise into or exchange for Junior Shares), unless in each case the full accrued and unpaid dividends on all outstanding Series A B Preferred Stock Shares shall have been paid in accordance with cash and on any other Parity Shares shall have been previously paid for the foregoing paragraph immediately preceding Dividend Period and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such immediately preceding dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior applicable to the next Dividend Payment Date. Dividends payable on a Parity Shares. (f) In any case where any Dividend Payment Date shall not be payable to Holders a Business Day, then (notwithstanding any other provision of record this Certificate of Designation) payment of dividends need not be made on such date, but may be made on the close of business next succeeding Business Day with the same force and effect as if made on the day Dividend Payment Date; provided, however, that no interest shall accrue on which such amount of dividends for the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “period from and after such Dividend Record Payment Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legend.

Dividends. (a) Holders of So long as any shares of Series A Senior Preferred Stock shall be outstanding, the holders of such Senior Preferred Stock shall be entitled to cumulative receive out of any funds legally available therefor, when, as and if declared by the Board, preferential dividends in cash at 23 24 the Dividend Rate on the Series A Preferred Stock Liquidation Preference hereunder, payable semiannuallyquarterly on the first Business Day of each calendar quarter commencing on October 1, which 2001. Such dividends shall be cumulative and begin to accrue on a daily basis from the Original Issue Date, whether or not declared by the Board of Directors and whether or a duly authorized committee thereof, out of the not there shall be net profits or net assets of the Company legally available thereforfor the payment of those dividends. (b) So long as any shares of Senior Preferred Stock shall be outstanding: (i) no dividend whatsoever shall be paid or declared, and no distribution shall be payable semiannually commencing made, on account of any class or series of Junior Stock or Parity Stock (other than, with respect to Junior Stock, dividends paid or distributions made solely in additional shares of such Junior Stock, and, with respect to Parity Stock, a partial dividend paid pro rata on such Parity Stock and the 180th day following Senior Preferred Stock) unless (A) all dividends in respect of the Issue Date Senior Preferred Stock for all past and current dividend periods have been paid in full and (B) such dividend or distribution consists only of cash and/or cash equivalents; and (ii) no shares of Junior Stock or Parity Stock, or any option, warrant or other right to acquire the following Business Day if Company's capital stock, shall be purchased, redeemed, retired or acquired by the Company or any such payment date is not subsidiary of the Company and no funds shall be paid into or set aside or made available for a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at sinking fund for the rate per annum of 6% per share on the Liquidation Preferencepurchase, redemption, retirement or acquisition thereof; provided that, in notwithstanding the event that on any Dividend Payment Dateforegoing, the Company is not permitted may, from time to declare time, repurchase any options or pay such dividend or incur such liability either (x) as a matter of law or (y) under any other rights to acquire the terms of any loan agreement, credit agreement, guarantyCompany's capital stock, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing on and following the Meeting End Date, in the event that dividends are paid on shares of Common Stock in any dividend period with respect to the Series A Preferred Stock, then a dividend shall be payable in respect of each share of Series A Preferred Stock for such period in an amount equal to the greater of (i) the amount otherwise payable in respect of such share of Series A Preferred Stock in accordance with the foregoing paragraph and (ii) the product of (A) the aggregate dividends payable per share of Common Stock in such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred options or other rights to acquire the Company's capital stock may have been exercised, in each case in accordance with the Stock is then convertible. Option Plan For purposes of this Section 3(a), a dividend period with respect to a Dividend Payment Date is the period commencing on the preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, the Issue Date) and ending on the day immediately prior to the next Dividend Payment Date. Dividends payable on a Dividend Payment Date shall be payable to Holders of record on the close of business on the day on which the Board of Directors or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrary, and without limiting any other remedy available to the Company or any other party, dividends shall not accrue or be payable in respect of shares initially issued any Holder who is contractually obligated to appear and vote in favor of any proposal made at a meeting of stockholders of the Company in order to effect the Stockholder Approval (or whose transferor Holder was so obligated) if such Holder (or such transferor Holder Key Employees or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval LegendStock Option Plan For Unit Directors, as applicable.

Dividends. (a) From and including the Issue Date, Holders of shares of Series A Preferred Stock shall be entitled to receive, prior to any distributions made in respect of any Junior Stock and prior to or contemporaneously with any distributions made in respect of any Parity Stock, in each case in respect of the same fiscal quarter, cumulative cash dividends on the each outstanding Series A Preferred Stock payable semiannually, which dividends shall be declared by Share at the Board of Directors or a duly authorized committee thereofDividend Rate, out of the assets of the Company funds legally available thereforfor payment thereof (such dividends, and shall be payable semiannually commencing “Cash Dividends”) on the 180th day following Liquidation Preference in effect immediately after the Issue immediately preceding Dividend Payment Date (or the following Business Day if any such payment date is not a Business Day) (each such date being referred to herein as a “Dividend Payment Date”) at the rate per annum of 6% per share on the Liquidation Preference; provided that, in the event that on any there has been no prior Dividend Payment Date, the Company is not permitted to declare or pay such dividend or incur such liability either (x) as a matter of law or (y) under the terms of any loan agreement, credit agreement, guaranty, or related agreement, such dividend (a “Deferred Dividend”) shall not be declared by the Board of Directors, shall not be paid or payable on such Dividend Payment Date and no liability shall be incurred in respect thereof, and instead, such Deferred Dividend shall be declared, become payable and be paid and the liability in respect thereof be incurred on the first succeeding Dividend Payment Date on which the Company is not prohibited from declaring, paying and incurring the liability in respect of such Deferred Dividend (and, for the avoidance of doubt, such Deferred Dividend shall be payable in addition to, and not in lieu of, any dividend which would ordinarily be payable on such succeeding Dividend Payment Issue Date). The amount of dividends payable for any other period that is shorter or longer than a full semiannual dividend period will be , computed on the basis of a 360-day year consisting of twelve 30-day months. Commencing months and compounded quarterly beginning on and following the Meeting End Issue Date (each such amount, a “Dividend Amount”). (b) Cash Dividends shall be payable in arrears on each Dividend Payment Date, in to the event that dividends are paid Holders as they appear on shares the Company’s stock register at the close of Common Stock in any dividend period with respect to business on the relevant Dividend Record Date. Dividends on the Series A Preferred StockStock shall accumulate and become Accrued Dividends on a day-to-day basis from, then a dividend shall be payable but not including, the immediately preceding Dividend Payment Date, or if there has been no prior Dividend Payment Date, from, and including, the Issue Date, until Cash Dividends are paid pursuant to this Section 3(a) in respect of each share such accumulated amounts or the Liquidation Preference is increased in respect of such accumulated amounts pursuant to Section 3(c) or Section 3(d). If a Dividend Payment Date is not a Business Day, then any Cash Dividend in respect of such Dividend Payment Date shall be due and payable on the first Business Day following such Dividend Payment Date. (c) If the Company fails to pay or declare a Cash Dividend in respect of any Dividend Payment Date, then the amount of the Accrued Dividends with respect to such shares of Series A Preferred Stock for shall be deemed to be Accumulated Dividends and be added, effective as of such period in an amount equal Dividend Payment Date, to the greater of Liquidation Preference until such time, if any, as such Cash Dividend is actually paid in cash. (id) Notwithstanding anything to the amount otherwise payable in respect of such share contrary herein, if any shares of Series A Preferred Stock are converted into Common Stock in accordance with this Certificate of Designation, or are repurchased or redeemed by the foregoing paragraph and (ii) Company in accordance with Section 7 or Section 8, then the product amount of (A) the aggregate dividends payable per share of Common Stock in Accrued Dividends with respect to such dividend period times (B) the number of shares of Common Stock into which such share of Series A Preferred Stock is then convertible. For through, and including, the related Conversion Date, Change of Control Repurchase Date, Company Redemption Date or Investor Redemption Date, as applicable, shall be deemed to be Accumulated Dividends and be added to the Liquidation Preference for purposes of this Section 3(a)such conversion, repurchase or redemption, as applicable. Notwithstanding anything to the contrary in the preceding sentence, if such Conversion Date, Change of Control Repurchase Date, Company Redemption Date or Investor Redemption Date, as applicable, occurs during the period after a dividend period with respect Dividend Record Date for a Cash Dividend that has been declared and on or prior to a the corresponding Dividend Payment Date, then such Cash Dividend will, at the Company’s option, either (x) be paid in cash on or prior to such Dividend Payment Date is (and the period commencing on amount of such Cash Dividend will not be added to the Liquidation Preference pursuant to the preceding sentence) or (y) not be paid in cash, be deemed to be Accumulated Dividends and be added to the Liquidation Preference for purposes of such conversion, repurchase or redemption, as applicable. For the avoidance of doubt, such Accrued Dividends described in the second immediately preceding sentence shall include, without limitation, dividends accruing from, and including, the immediately preceding Dividend Payment Date (or, if there is no preceding Dividend Payment Date, from, and including, the Issue Issuer Date) and ending on to, but not including, the day immediately prior to applicable Conversion Date, Change of Control Repurchase Date, Company Redemption Date or Investor Redemption Date, as applicable. (e) So long as any share of the next Dividend Payment Date. Dividends payable on a Dividend Payment Date Series A Preferred Stock remains outstanding, no dividend or distribution shall be payable to Holders of record on the close of business on the day on which the Board of Directors declared or a duly authorized committee thereof declares the dividend payable (each, a “Dividend Record Date”). Notwithstanding anything in this Section 3(a) to the contrarypaid on, and without limiting any other remedy available no redemption or repurchase shall be agreed to the Company or consummated of, Parity Stock, Common Stock or any other partyshares of Junior Stock, unless all accumulated and unpaid dividends for all preceding Dividend Periods (including the Dividend Period in which such accumulated and unpaid dividends first arose) of the Company have been declared and paid and no such dividend or distribution or redemption or repurchase shall not accrue be paid or be payable in cash for any period unless the Series A Preferred Stock has been paid full Cash Dividends in respect of the same period (i.e., that are not Accumulated Dividends); provided, however, that the foregoing limitation shall not apply to (i) a dividend payable on Common Stock or other Junior Stock in shares initially issued of Common Stock or other Junior Stock, (ii) the acquisition of shares of Common Stock or other Junior Stock in exchange for shares of Common Stock or other Junior Stock and the payment of cash in lieu of fractional shares of Common Stock or other Junior Stock; (iii) purchases of fractional interests in shares of Common Stock or other Junior Stock pursuant to the conversion or exchange provisions of shares of other Junior Stock or any Holder who is contractually obligated to appear and vote securities exchangeable for or convertible into such shares of Common Stock or other Junior Stock; (iv) redemptions, purchases or other acquisitions of shares of Common Stock or other Junior Stock in favor connection with the administration of any proposal made at employee benefit plan in the ordinary course of business, including, without limitation, the forfeiture of unvested shares of restricted stock or share withholdings upon exercise, delivery or vesting of equity awards granted to officers, directors and employees and the payment of cash in lieu of fractional shares of Common Stock or other Junior Stock; (v) any dividends or distributions of rights in connection with a meeting stockholders’ rights plan or any redemption or repurchase of stockholders rights pursuant to any stockholders’ rights plan; and (vi) the exchange or conversion of Junior Stock for or into other Junior Stock and the Company payment of cash in order lieu of fractional shares of other Junior Stock. Notwithstanding the preceding, if full dividends have not been paid on the Series A Preferred Stock and any Parity Stock, dividends may be declared and paid on the Series A Preferred Stock and such Parity Stock so long as the dividends are declared and paid pro rata so that amounts of dividends declared per share on the Series A Preferred Stock and such Parity Stock shall in all cases bear to effect each other the Stockholder Approval same ratio that accumulated and unpaid dividends per share on the shares of Series A Preferred Stock and such other Parity Stock bear to each other. (f) For the avoidance of doubt, Holders of Series A Preferred Stock shall not be entitled to any dividend paid on any Common Stock or whose transferor Holder was so obligated) if such Holder (other Junior Stock, any dividend paid on any Parity Stock or such transferor Holder or the Affiliates of either) fails so to appear and vote in favor. Any shares issued to such Holders shall bear the Stockholder Approval Legendany dividend paid on any Senior Stock.