Common use of Additional Covenants Clause in Contracts

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any of such Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of return, other than dividends or distributions on Equity Interests issued by any Subsidiary solely payable to the Company or any Subsidiary thereof (for the avoidance of doubt, whether such Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is are the same stock Equity Interests as that those on which the dividend is being paid or ranks rank pari passu with or junior to such stockEquity Interests). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock, or (ii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an a reclassification of the Guarantor’s capital stock or the exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend or distribution in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend or distribution in the form of stock, warrants, options or other rights where the dividend or distribution stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend or distribution is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodPeriod or other event referred to below, (Bb) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (Cc) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). ) if at such time (bi) there shall have occurred any event (A) of which the Company has actual knowledge that with the giving of notice or the lapse of time, or both, would constitute an Event of Default with respect to the Securities, and (B) which the Company shall not have taken reasonable steps to cure, (ii) if the Securities are held by the Issuer Trust, the Company shall be in default with respect to its payment of any obligations under the Guarantee relating to the Preferred Securities issued by the Issuer Trust, or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company also covenants with each Holder of Securities issued to the Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the Issuer Trust, provided, provided that any permitted successor of the Company hereunder as provided under Section 8.2 may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up windup or liquidate the Trust Issuer Trust, other than (Aa) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Issuer Trust to continue not to be taxable as a grantor trust and not as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stockEquity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any of such Subsidiary's Equity Interests entitling the holders thereof to a stated rate of return, other than dividends or distributions on Equity Interests issued by any Subsidiary solely payable to the Company or any Subsidiary thereof (for the avoidance of doubt, whether such Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock Equity Interests or of any class or series of the Company's indebtedness for any class or series of the Company's capital stockEquity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is are the same stock Equity Interests as that those on which the dividend is being paid or ranks rank pari passu with or junior to such stockEquity Interests). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities of such series (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodPeriod or other event referred to below, (Bb) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (Cc) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). ) if at such time (bi) there shall have occurred any event (A) of which the Company has actual knowledge that with the giving of notice or the lapse of time, or both, would constitute an Event of Default with respect to the Securities of such series, and (B) which the Company shall not have taken reasonable steps to cure, (ii) if the Securities of such series are held by an Issuer Trust, the Company shall be in default with respect to its payment of any obligations under the Guarantee relating to the Preferred Securities issued by such Issuer Trust, or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company also covenants with each Holder of Securities of a series issued to an Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such Issuer Trust, provided, provided that any permitted successor of the Company hereunder as provided under Section 8.2 may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up windup or liquidate the Trust such Issuer Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the related Preferred Securities in liquidation of the Trust such Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Issuer Trust to continue not to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stockEquity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary's preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock Equity Interests or of any class or series of the Company's indebtedness for any class or series of the Company's capital stockEquity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is the same stock Equity Interests as that on which the dividend is being paid or ranks pari passu with or junior to such stockEquity Interests). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes. (c) The Company also agrees to use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 2005 and all future fiscal years, as a real estate investment trust under the Internal Revenue Code of 1986, as amended.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any of such Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of return, other than dividends or distributions on Equity Interests issued by any Subsidiary solely payable to the Company or any Subsidiary thereof (for the avoidance of doubt, whether such Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is are the same stock Equity Interests as that those on which the dividend is being paid or ranks rank pari passu with or junior to such stockEquity Interests), or (F) if the failure to do so would cause a default event. (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock (for the avoidance of doubt, the term “capital stock” includes both common stock and preferred stock of the Company), (ii) vote in favor of or permit or otherwise allow any of its subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of such subsidiaries preferred stock (for the avoidance of doubt, whether such preferred stock is perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Periodsuch Event of Default, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes. (c) The Company also agrees to use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 31, 2005, as a real estate investment trust under the Internal Revenue Code of 1986, as amended.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any of such Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of return, other than dividends or distributions on Equity Interests issued by any Subsidiary solely payable to the Company or any Subsidiary thereof (for the avoidance of doubt, whether such Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is are the same stock Equity Interests as that those on which the dividend is being paid or ranks rank pari passu with or junior to such stockEquity Interests).. [TPW: NYLEGAL:665375.4] 20965-00009 07/19/2007 07:27 PM (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (y) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return (iifor the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise) other than to the Company or (z) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock Equity Securities of the Company (or securities convertible into or exercisable for such capital stockEquity Securities) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Securities of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares of the Company's capital stock ’s Equity Interests pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock), or (F) any declaration or payment of a dividend or other distribution in order for the Company to maintain its status as a REIT, provided that any such declaration or payment shall be in the form of stock to the extent permitted by the Code or under Internal Revenue Service Revenue Procedure 2008-68 or subsequent guidance and commercially reasonable to do so. (b) The Company also covenants and agrees with each Holder of Securities (i) to holdthat during the period commencing on the date hereof and continuing through April 30, directly 2012, it shall not declare or indirectlypay dividends or distributions on, one hundred percent (100%) or redeem, purchase, or acquire any of the Common Company’s Equity Interests (for the avoidance of doubt the Original Preferred Securities (as defined in the Exchange Agreement) shall not be deemed to be Equity Interests of the TrustCompany), providedexcept for (A) repurchases, that any permitted successor redemptions or other acquisitions of Equity Interests of the Company hereunder may succeed to in connection with any employment contract, benefit plan or other similar arrangement with or for the Company's ownership benefit of such Common Securitiesany one or more employees, (ii) as holder of such Common Securitiesofficers, not to voluntarily dissolvedirectors or consultants, wind-up or liquidate the Trust other than (A) in connection with a distribution dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of Equity Securities of the Securities to the holders of the Preferred Securities Company (or securities convertible into or exercisable for such Equity Securities) as consideration in liquidation of the Trust or an acquisition transaction, (B) as a result of an exchange or conversion of any class or series of the Company’s Equity Interests (or any Equity Securities of a Subsidiary of the Company) for any class or series of the Company’s Equity Interests or of any class or series of the Company’s indebtedness for any class or series of the Company’s Equity Interests, (C) the purchase of fractional interests in shares of the Company’s Equity Interests pursuant to the conversion or exchange provisions of such Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with certain mergersany Rights Plan, consolidations the issuance of rights, stock or amalgamations other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, (E) any dividend in the form of Equity Interests, warrants, options or other rights exercisable for Equity Interests, or (F) any declaration or payment of a dividend or other distribution in order for the Company to maintain its status as a REIT, provided that any such declaration or payment shall be in the form of stock to the extent permitted by the Trust Agreement Code or under Internal Revenue Service Revenue Procedure 2008-68 or subsequent guidance and commercially reasonable to do so. (iiic) As of the date hereof, the Company is qualified as a real estate investment trust (a “REIT”) under the Code and no circumstance or event has occurred that would disqualify the Company as a REIT. Subject to the Company’s right to merge into an entity that is not a real estate investment trust pursuant to Section 8.1 hereof, the Company agrees to use its commercially reasonable commercial effortsefforts to, consistent with at all times meet the terms requirements to qualify as a REIT unless and provisions until the Board of Directors of the Trust Agreement, to cause Company determines that it is not in the Trust to continue best interests of the Company to be taxable organized as a grantor trust and not as a corporation for United States Federal income tax purposesREIT.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is the same stock Equity Interests as that on which the dividend is being paid or ranks pari passu with or junior to such stockEquity Interests). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Each of the Guarantor and the Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of its capital stock (for the Company's avoidance of doubt, the term “capital stock” includes both common stock and preferred stock of such entity), other than those dividends or distributions declared before such Event of Default, (ii) vote in favor of or permit or otherwise allow any of its subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of such subsidiaries preferred stock (for the avoidance of doubt, whether such preferred stock is perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any of its debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company such entity in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company such entity (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's its capital stock (or any capital stock of a Subsidiary subsidiary of the Companysuch entity) for any class or series of the Company's its capital stock or of any class or series of the Company's its indebtedness for any class or series of the Company's its capital stock, (C) the purchase of fractional interests in shares of the Company's its capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) [Reserved]. (c) The Company Guarantor also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) agrees to use its reasonable commercial effortsbest efforts to meet the requirements to qualify, consistent with effective for the terms fiscal year ending December 31, 2005 and provisions of the Trust Agreementall future fiscal years, to cause the Trust to continue to be taxable as a grantor real estate investment trust and not under the Internal Revenue Code of 1986, as a corporation for United States Federal income tax purposesamended.

Additional Covenants. (a) The For the period commencing on the date of this Agreement and continuing through March 30, 2010, or in any event if an Event of Default has occurred and is continuing, the Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock (for the avoidance of doubt, the term “capital stock” includes both common stock and preferred stock of the Company), (ii) vote in favor of or permit or otherwise allow any of its subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of such subsidiaries preferred stock (for the avoidance of doubt, whether such preferred stock is perpetual or otherwise) except for dividends or distributions (x) to the Company or its subsidiaries and (y) by subsidiaries of the Company in which there are third party investors to the Company and such third party investors, or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stockholder stock of the Company (or securities convertible into or exercisable for such capital units of stockholder stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Perioddate of this Agreement or, if later than March 30, 2010, prior to an Event of Default, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities Notwithstanding the foregoing, the restrictions set forth in Section 10.6(a) shall not apply to (i) payments of interest only (including deferred interest payments of approximately $525,800 accruing through June 30, 2009) on, and any repayments, repurchases or redemptions of those certain Fixed/Floating Rate Junior Subordinated Debt Securities due 2035, issued pursuant to holdthat certain Junior Subordinated Indenture between Impac Mortgage Holdings, directly or indirectlyInc., one hundred percent (100%) as issuer, and Wilmington Trust Company, as trustee, dated as of October 15, 2005 and the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed related securities issued pursuant to the Company's ownership Amended and Restated Declaration of such Common SecuritiesTrust of Impact Capital Trust #4 dated as of October 15, 2005, (ii) as holder a redemption of the Company’s 9.375% Series B Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series B Preferred Stock”)and its 9.125% Series C Cumulative Redeemable Preferred Stock, $0.01 par value per share (the “Series C Preferred Stock”), or the repurchase of all of such Common Securities, not Series B Preferred Stock or Series C Preferred Stock (for an aggregate purchase price of up to voluntarily dissolve, wind-up or liquidate the Trust other than (A$1,861,000) in connection with a distribution of the Securities pursuant to the holders terms of a cash tender offer for all such outstanding stock (which tender offer may include the payment of accumulated but unpaid dividends upon such Series B Preferred Securities Stock and Series C Preferred Stock in liquidation an aggregate amount of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) up to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes$7,444,000).

Additional Covenants. 6.1.1 During the period from the date the of Agreement and until Closing the Parties hereby agree that, the Seller and Company shall not (aand Seller shall not cause or permit the Seller and Company to): (i) The Company covenants hire or fire any executive officers or senior management of the Company; (ii) amend, waive or otherwise change, in any respect, the Seller and agrees with each Holder Company’s certificate of Securities that if an Event incorporation or bylaws; (iii) issue, sell, assign, transfer, encumber, hypothecate or otherwise dispose of Default shall have occurred and be continuing or any equity interests of the Company shall have given notice or options, warrants or securities or rights to acquire or convert into equity interests of the Company; (iv) sell, assign, transfer, license, encumber, hypothecate or otherwise dispose of any material assets of the Company outside of the ordinary course of business; (v) pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such noticeshares, or such Extension Perioddirectly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities; (vi) acquire, including by merger, consolidation, acquisition of stock or assets, or any extension other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, shall be continuingor any material amount of assets outside the ordinary course of business; (vii) incur, it shall not (i) declare create, assume, prepay or pay otherwise become liable for any dividends indebtedness, make a loan or distributions onadvance to or investment in any third party, or redeem purchaseguarantee or endorse any Indebtedness, acquire liability or make a liquidation obligation of any person; (viii) sweep or disburse any cash of the Company for any purpose other than payment with respect to, any shares of ordinary course operating expenses of the Company's capital stock; (ix) terminate, waiver or (ii) make assign any payment of principal of or material rights under any interest or premium on or repay, repurchase or redeem any debt securities material contracts of the Company that rank pari passu in all respects with Seller and Company; (x) waive, release, assign, settle or junior in interest compromise any Action (including any Action, relating to this Agreement or the Securities transactions contemplated hereby); (xi) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any contract or transaction with Buyer or its affiliates (Aother than the Seller and Company) repurchasesor any stockholder, redemptions officer, director, employee or other acquisitions independent contractor of shares of capital stock any of the Company in connection with foregoing or any employment contractof their respective immediately family members; or (xii) agree, benefit plan authorize or other similar arrangement with or for the benefit of commit to do any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock)foregoing actions. (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodPeriod or other event referred to below, (Bb) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (Cc) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). ) if at such time (bi) there shall have occurred any event (A) Of which the Company has actual knowledge that with the giving of notice or the lapse of time, or both, would constitute an Event of Default with respect to the Securities, and (B) which the Company shall not have taken reasonable steps to cure, (ii) if the Securities are held by the Issuer Trust, the Company shall be in default with respect to its payment of any obligations under the Guarantee relating to the Preferred Securities issued by the Issuer Trust, or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company also covenants with each Holder of Securities issued to the Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the Issuer Trust, provided, provided that any permitted successor of the Company hereunder as provided under Section 8.2 may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up windup or liquidate the Trust Issuer Trust, other than (Aa) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Issuer Trust to continue not to be taxable as a grantor trust and not as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company Corporation covenants and agrees with each Holder of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the CompanyCorporation's capital stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company Corporation that rank pari passu in all respects with or junior in interest to the Securities of such series (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company Corporation in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company Corporation (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bb) as a result of an exchange or conversion of any class or series of the CompanyCorporation's capital stock (or any capital stock of a Subsidiary of the CompanyCorporation) for any class or series of the CompanyCorporation's capital stock or of any class or series of the CompanyCorporation's indebtedness for any class or series of the CompanyCorporation's capital stock, (Cc) the purchase of fractional interests in shares of the CompanyCorporation's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). ) if at such time (bi) there shall have occurred any event (A) of which the Corporation has actual knowledge that with the giving of notice or the lapse of time, or both, would constitute an Event of Default with respect to the Securities of such series, and (B) which the Corporation shall not have taken reasonable steps to cure, (ii) if the Securities of such series are held by an Issuer Trust, the Corporation shall be in default with respect to its payment of any obligations under the Guarantee Agreement relating to the Preferred Securities issued by such Issuer Trust, or (iii) the Corporation shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company Corporation also covenants with each Holder of Securities of a series issued to an Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such Issuer Trust, provided, provided that any permitted successor of the Company Corporation hereunder may succeed to the CompanyCorporation's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust such Issuer Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the related Preferred Securities in liquidation of the Trust such Issuer Trust, or (Bb) in connection with certain mergersany merger, consolidations consolidation or amalgamations amalgamation permitted by the Trust Agreement related Declaration of Trust, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreementsuch Declaration of Trust, to cause the such Issuer Trust to continue to be taxable classified as a grantor trust and not to be taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company Corporation covenants and agrees with each Holder of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the CompanyCorporation's capital stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company Corporation that rank pari passu in all respects with or junior in interest to the Securities of such series (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company Corporation in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company Corporation (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bb) as a result of an exchange or conversion of any class or series of the CompanyCorporation's capital stock (or any capital stock of a Subsidiary of the CompanyCorporation) for any class or series of the CompanyCorporation's capital stock or of any class or series of the CompanyCorporation's indebtedness for any class or series of the CompanyCorporation's capital stock, (Cc) the purchase of fractional interests in shares of the CompanyCorporation's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) if at such time the Corporation shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company Corporation also covenants with each Holder of Securities of a series issued to an Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such Issuer Trust, provided, provided that any permitted successor of the Company Corporation hereunder may succeed to the CompanyCorporation's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust such Issuer Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the related Preferred Securities in liquidation of the Trust such Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Issuer Trust to continue not to be taxable as a grantor trust and not as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is the same stock Equity Interests as that on which the dividend is being paid or ranks pari passu with or junior to such stock)Equity Interests) or (F) any transaction consented to in writing by Holders of not less than a majority in principal amount of Outstanding Securities. (b) The During the Initial Fixed Rate Period, the Company also covenants shall not declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with each Holder respect to, any of Securities the Company’s Equity Interests, other than (a) with the prior, express, written consent of the Holders of not less than a majority in principal amount of the Outstanding Securities, or (b) dividends or distributions which are reasonably necessary to maintain the REIT status of the Company for federal income and excise tax purposes and avoid imposition of federal income and excise tax on the Company with respect to such distributed taxable income or net capital gains; provided, that such distributions or dividends as described in clause (b) above shall (i) to hold, directly or indirectly, one hundred percent (100%) the extent paid to holders of the Common Securities Company’s common stock (A) not be in excess of $2,500,000 (in the aggregate in cash) and (B) be in the form of the Trust, provided, that any permitted successor of the Company hereunder may succeed Company’s common stock to the Company's ownership maximum extent permissible as stated by the Internal Revenue Service regulations, rulings, revenue procedures, notices, announcements, or other authoritative pronouncements at the time of such Common Securitiesdividend or distribution with only the balance payable in cash, and (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the extent paid to holders of the Preferred Securities Company’s preferred stock, be in liquidation an amount no greater than that required to be distributed to such holders to permit the distributions and dividends to holders of the Trust or (B) in connection with certain mergers, consolidations or amalgamations Company’s common stock permitted by clause (i) above. (c) Subject to Section 10.6(b), the Trust Agreement and (iii) Company also agrees to use its reasonable commercial effortsbest efforts to meet the requirements to qualify, consistent with effective for the terms fiscal year ending December 31, 2009 and provisions of the Trust Agreementall future fiscal years, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposesREIT under the Code.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stockEquity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any of such Subsidiary's Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock Equity Interests or of any class or series of the Company's indebtedness for any class or series of the Company's capital stockEquity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is the same stock Equity Interests as that on which the dividend is being paid or ranks pari passu with or junior to such stockEquity Interests). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities Senior Notes that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares Equity Interests of the Company's capital stock, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any preferred Equity Interests of such Subsidiaries or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities Senior Notes (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock Equity Interests purchase plan or in connection with the issuance of capital stock of Equity Interests in the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange exchange, conversion reclassification or conversion combination of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock of Equity Interests in a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares the Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interest or the stock Equity Interest issuable upon exercise of such warrants, options or other rights is the same stock Equity Interest as that on which the dividend is being paid or ranks pari passu with or junior to such stockEquity Interest). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) agrees to use its reasonable commercial effortsbest efforts to meet the requirements to qualify, consistent with effective for the terms fiscal year ending December 31, 2007, and provisions all future fiscal years for as long as the Senior Notes are Outstanding, as a real estate investment trust under the Code so long as the Company determines that it is in its best interest to remain qualified as a real estate investment trust. (c) The Company hereby covenants and agrees that it shall maintain, as of the Trust Agreementend of each fiscal quarter during which the Senior Notes are Outstanding, to cause the Trust to continue to be taxable as (i) Tangible Net Worth of at least $400,000,000 and (ii) a grantor trust and not as a corporation for United States Federal income tax purposesDebt-to-Total Capitalization Ratio of 95% or less.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities Debentures that so long as the Debentures are outstanding, if (i) there shall have occurred any event of which the Company has actual knowledge that (A) with the giving of notice or the lapse of time or both, would constitute an Event of Default shall have occurred hereunder and be continuing or (B) in respect of which the Company shall not have given notice of its election taken reasonable steps to begin an Extension Period cure, or (ii) the Company shall be in default with respect to its payment of any obligations under the Securities Guarantee, then the Company shall not, and shall cause any Subsidiary not have rescinded such noticeto, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, stock or (iiy) make any payment of principal of or any principal, interest or premium premium, if any, on or repay, repurchase or redeem any debt securities (including guarantees of indebtedness for money borrowed) of the Company that rank pari passu in all respects with or junior in interest to the Securities Debentures (other than (A1) repurchasesany dividend, redemption, liquidation, interest, principal or guarantee payment by the Company where the payment is made by way of securities (including capital stock) that rank pari passu with or junior to the securities on which such dividend, redemption, interest, principal or guarantee payment is being made, (2) redemptions or other acquisitions purchases of shares of capital stock of any rights pursuant to any stockholder rights agreement now in existence or subsequently entered into by the Company in connection with any employment contract, benefit plan or other similar arrangement with or for and the benefit declaration of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment of such rights or stockholder stock purchase plan or in connection with the issuance of capital preferred stock under such plans in the future, (3) payments under the Guarantee, (4) purchases of Company Common Stock related to the issuance of Company Common Stock under any of the Company (Company's benefit plans for its directors, officers or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Periodemployees, (B5) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series reclassification of the Company's capital stock or the exchange or conversion of any one series or class or series of the Company's indebtedness for any class or series of the Company's capital stock, stock for another series or class of the Company's capital stock and (C6) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) . The Company also covenants with each Holder of Securities the Debentures (i) that for so long as Preferred Securities are outstanding not to hold, convert the Debentures except pursuant to a notice of conversion delivered to the Conversion Agent by a holder of Preferred Securities and (ii) to maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (iiiii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up up, liquidate or liquidate dissolve the Trust other than Trust, except (Aa) in connection with a distribution of the Securities Debentures to the holders of the Preferred Securities in liquidation dissolution of the Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iiiiv) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, Agreement to cause the Trust to continue to be taxable as remain a grantor business trust and not to be classified as an association taxable as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company Corporation covenants and agrees with each Holder of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the CompanyCorporation's capital stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company Corporation that rank pari passu in all respects with or junior in interest to the Securities of such series (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company Corporation in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company Corporation (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bb) as a result of an exchange or conversion of any class or series of the CompanyCorporation's capital stock (or any capital stock of a Subsidiary of the CompanyCorporation) for any class or series of the CompanyCorporation's capital stock or of any class or series of the CompanyCorporation's indebtedness for any class or series of the CompanyCorporation's capital stock, (Cc) the purchase of fractional interests in shares of the CompanyCorporation's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). ) if at such time (bi) there shall have occurred any event (A) of which the Corporation has actual knowledge that with the giving of notice or the lapse of time, or both, would constitute an Event of Default with respect to the Securities of such series, and (B) which the Corporation shall not have taken reasonable steps to cure, (ii) if the Securities of such series are held by an Issuer Trust, the Corporation shall be in default with respect to its payment of any obligations under the Guarantee Agreement relating to the Capital Securities issued by such Issuer Trust, or (iii) the Corporation shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company Corporation also covenants with each Holder of Securities of a series issued to an Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such Issuer Trust, provided, provided that any permitted successor of the Company Corporation hereunder may succeed to the CompanyCorporation's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust such Issuer Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred related Capital Securities in liquidation of the Trust such Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Issuer Trust to continue not to be taxable as a grantor trust and not as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of each series that if an Event of Default it shall have occurred not, and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not permit any Subsidiary of the Company to, (ia) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (iib) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities of such series or make any guarantee payments with respect to any guarantee by the Company of debt securities of any Subsidiary of the Company if such guarantee ranks pari passu with or junior in interest to the Securities (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder shareholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, ; (Bb) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any other class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, ; (Cc) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, ; (Dd) any declaration of a dividend in connection with the implementation or amendment of the Company shareholders' rights plan (or any Rights Plansuccessor thereto), or the issuance of rights, stock or other property under any Rights Plan such rights plan, or the redemption or repurchase of rights pursuant thereto, hereto; or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). ) if at such time (bi) there shall have occurred any event of which the Company has actual knowledge that (A) with the giving of notice or the lapse of time or both, would constitute an Event of Default with respect to the Securities of such series and (B) in respect of which the Company shall not have taken reasonable steps to cure, (ii) if the Securities of such series are held by a Citizens Trust, the Company shall be in default with respect to its payment of any obligations under the Citizens Guarantee relating to the Capital Securities issued by such Citizens Trust or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. For purposes hereof, the Company's Senior Indebtedness shall not be deemed to be pari passu with the Securities. The Company also covenants with each Holder of Securities of a series issued to a Citizens Trust (i) to hold, maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the such Citizens Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, ; (ii) as holder of such the Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate such Citizens Trust, except upon prior approval of the Trust other than Federal Reserve, if then required under applicable capital guidelines or policies of the Federal Reserve, and (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred Capital Securities in liquidation of the such Citizens Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement; and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Citizens Trust to continue to be remain classified as not an association taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than than, with respect to clauses (i) or (ii) above, (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock).. 56 (b) The Company also covenants with each Holder of Securities Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust Trust, (B) in connection with the redemption of the Preferred Securities or (BC) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of any series that it shall not, and it shall not permit any Subsidiary of the Company to, (a) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company’s capital stock (which includes common and preferred stock), (b) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Company (including Securities other than the Securities of such series) that rank pari passu in all respects with or junior in interest to the Securities of such series or (c) make any guarantee payments with respect to any guarantee by the Company of debt securities of any Subsidiary of the Company if such guarantee ranks pari passu with or junior in interest to the Securities (other than, in the case of clauses (a) through (c), (i) dividends or distributions in capital stock of the Company (which includes common and preferred stock), (ii) any declaration of a dividend in connection with the implementation of a rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, (iii) payments under the SVB Guarantee related to the Preferred Securities issued by the SVB Trust holding Securities of such series, and (iv) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Company’s benefit plans for its directors, officers consultants or employees) or (d) redeem, purchase or acquire less than all of the Securities of such series or any of the Preferred Securities if at such time (x) there shall have occurred an Event of Default with respect to the Securities of such series, (y) if the Securities of such series are held by a SVB Trust, the Company shall have occurred and be continuing in default with respect to its payment of any obligations under the SVB Guarantee relating to the Preferred Securities issued by such SVB Trust, or (z) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) . The Company also covenants with each Holder of Securities of a series issued to a SVB Trust (iA) to holdmaintain, directly or indirectly, one hundred percent (100%) % ownership of the Common Securities of the such SVB Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (iiB) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate such SVB Trust, except upon prior approval of the Trust other than federal regulators of the Company, if then so required under applicable guidelines or policies of such regulators, and except (A1) in connection with a distribution of the Securities of such series to the holders of the Preferred Trust Securities in liquidation of the such SVB Trust or (B2) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement, and (iiiC) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such SVB Trust to continue to be taxable remain classified as a grantor trust and not an association taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company Each of the Corporation and the Guarantor covenants and agrees with each Holder of Securities that if an Event of Default it shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities not, and shall not have rescinded such noticepermit any of its subsidiaries, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the CompanyCorporation's or the Guarantor's capital stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company Corporation or the Guarantor (including other Securities) that rank pari passu in all respects with or junior in interest to the Securities or the Guarantees, respectively, or (z) make any guarantee payments with respect to any guarantee by the Corporation or the Guarantor of the debt securities of any Subsidiary of the Corporation or the Guarantor if such guarantee ranks pari passu with or junior in interest to the Securities or the Guarantees (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company Corporation or the Guarantor in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors directors, consultants or consultantsindependent contractors, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company Corporation or the Guarantor (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bb) as a result of an exchange or conversion of any class or series of the CompanyCorporation's or the Guarantor's capital stock (or any capital stock of a Subsidiary of the CompanyCorporation or the Guarantor) for any class or series of the CompanyCorporation's or the Guarantor's capital stock stock, respectively, or of any class or series of the CompanyCorporation's or the Guarantor's indebtedness for any class or series of the CompanyCorporation's or the Guarantor's capital stock, respectively, (Cc) the purchase of fractional interests in shares of the CompanyCorporation's or the Guarantor's capital stock stock, respectively, pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, thereto or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). ) if at such time (bi) there shall have occurred any event (A) of which the Corporation or the Guarantor has actual knowledge that would constitute a Debenture Default with respect to the Securities, and (B) which the Corporation and the Guarantor shall not have taken reasonable steps to cure, (ii) if the Securities are held by the Issuer Trust, the Corporation or the Guarantor shall be in default with respect to its payment of any obligations under the Guarantee Agreement relating to the Capital Securities, or the Guarantor shall be in default with respect to its payment of any obligations under the Guarantees or (iii) the Corporation shall have given notice of its election to begin an Extension Period with respect to the Securities as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company Corporation also covenants with each Holder of Securities issued to the Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the TrustSecurities, provided, provided that any permitted successor of the Company Corporation hereunder may succeed to the CompanyCorporation's ownership of such the Common Securities, (ii) as holder of such the Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust Issuer Trust, other than (Aa) in connection with a distribution of the Securities to the holders of the Preferred Capital Securities in liquidation of the Trust Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Issuer Trust to continue to be taxable characterized as a grantor trust and not as a corporation for United States Federal income tax purposespurposes and to not be required to register as an "investment company" under the Investment Company Act.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any of such Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of return, other than dividends or distributions on Equity Interests issued by any Subsidiary solely payable to the Company or any Subsidiary thereof (for the avoidance of doubt, whether such Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is are the same stock Equity Interests as that those on which the dividend is being paid or ranks rank pari passu with or junior to such stockEquity Interests). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes. (c) The Company shall notify in writing, within five (5) Business Days of the occurrence thereof, the Trustee, the Purchaser and each holder of Preferred Securities of the occurrence of a Change of Control (the “Change of Control Notice”). In the event of a Change of Control, then, upon written notice (a “Repurchase Notice”) delivered to the Depositor by the Holders of not less than 10% of the aggregate Liquidation Amount of the Preferred Securities Outstanding, Holders shall have the option, exercisable within 30 days from the date of the Change of Control, to require the Depositor to repurchase all of the outstanding Preferred Securities in accordance with Section 4.12 of the Trust Agreement.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if if, and only if, an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock (for the avoidance of doubt, the term “capital stock” includes both common stock and preferred stock of the Company), (ii) vote in favor of or permit or otherwise allow any of its subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of such subsidiaries preferred stock (for the avoidance of doubt, whether such preferred stock is perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is the same stock Equity Interests as that on which the dividend is being paid or ranks pari passu with or junior to such stock)Equity Interests) or (F) any transaction consented to in writing by Holders of not less than a majority in principal amount of Outstanding Securities. (b) The During the Fixed Rate Period, the Company also covenants shall not declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with each Holder respect to, any of Securities the Company’s Equity Interests, other than (a) with the prior, express, written consent of the Holders of not less than a majority in principal amount of the Outstanding Securities, or (b) dividends or distributions which are reasonably necessary to maintain the REIT status of the Company for federal income and excise tax purposes and avoid imposition of federal income and excise tax on the Company with respect to such distributed taxable income or net capital gains; provided, that such distributions or dividends as described in clause (b) above shall (i) to hold, directly or indirectly, one hundred percent (100%) the extent paid to holders of the Common Securities Company’s common stock (A) not be in excess of $2,500,000 (in the aggregate in cash) and (B) be in the form of the Trust, provided, that any permitted successor of the Company hereunder may succeed Company’s common stock to the Company's ownership maximum extent permissible as stated by the Internal Revenue Service regulations, rulings, revenue procedures, notices, announcements, or other authoritative pronouncements at the time of such Common Securitiesdividend or distribution with only the balance payable in cash, and (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the extent paid to holders of the Preferred Securities Company’s preferred stock, be in liquidation an amount no greater than that required to be distributed to such holders to permit the distributions and dividends to holders of the Trust or (B) in connection with certain mergers, consolidations or amalgamations Company’s common stock permitted by the Trust Agreement and clause (iiii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposesabove.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of each series that if an Event of Default it shall have occurred not, and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not permit any Subsidiary of the Company to, (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu with or junior in all respects interest to the Securities of such series or (iii) make any guarantee payments with respect to any guarantee by the Company of debt securities of any subsidiary of the Company if such guarantee ranks pari passu with or junior in interest to the Securities (other than (Aa) repurchases, redemptions dividends or other acquisitions of shares of capital stock of the Company distributions in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Db) any declaration of a dividend in connection with any Rights Plan, the issuance implementation of rights, stock or other property under any a Rights Plan or the redemption or repurchase of any rights distributed pursuant theretoto a Rights Plan, (c) payments under the Guarantee with respect to the Securities of such Series, and (d) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Company's benefit plans for its directors, officers or employees, related to the issuance of Common Stock or rights under a dividend reinvestment and stock purchase plan, or related to the issuance of Common Stock (Eor securities convertible or exchangeable for Common Stock) as consideration in an acquisition transaction that was entered into prior to the commencement of such Extension Period) if at such time (x) there shall have occurred any dividend in event of which the form Company has actual knowledge that (A) with the giving of stock, warrants, options or other rights where the dividend stock notice or the stock issuable upon exercise lapse of time or both, would constitute an Event of Default with respect to the Securities of such warrants, options or other rights is the same stock as that on series and (B) in respect of which the dividend is being paid Company shall not have taken reasonable steps to cure, (y) if the Securities of such series are held by a Trust, the Company shall be in default with respect to its payment of any obligations under the Guarantee relating to the Capital Securities issued by such Trust or ranks pari passu (z) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or junior to such stock). (b) Extension Period, or any extension thereof, shall be continuing. The Company also covenants with each Holder of Securities of a series issued to a Trust (i) to hold, maintain directly or indirectly, one hundred percent (100%) % ownership of the Common Securities of the such Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust other than such Trust, except (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred Trust Securities of such Trust in liquidation of the such Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Trust to continue to be taxable remain classified as a grantor trust and not an association taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company and the Guarantor each covenants and agrees with each Holder of Securities of a series issued to a Fund American Trust that it will not declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of its capital stock (other than (a) dividends, distributions, redemptions, purchases, acquisitions or payments made with its capital stock, (b) any declaration or payment of a dividend in connection with the implementation of a stockholders' rights plan, or the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, (c) payments of accrued dividends on preferred stock upon the redemption, exchange or conversion of any preferred stock as may be outstanding 107 from time to time, (d) the purchase of fractional interests in shares of preferred stock upon the redemption, exchange or conversion of such preferred stock, (e) purchases or acquisitions of shares of common stock in connection with the satisfaction of obligations under any employee benefit plan or other contractual obligation or (f) as a result of a reclassification of capital stock or the exchange or conversion of one class or series capital stock for another class or series of capital stock), if at such time (i) there shall have occurred an Event of Default Default, (ii) the Guarantor shall have occurred and be continuing in default with respect to its payment of any obligations under the related Fund American Trust Guarantee or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) . The Company also covenants with each Holder of Securities of a series issued to a Fund American Trust (i) to holdmaintain directly, directly or indirectlyindirectly through a wholly owned Subsidiary, one hundred percent (100%) % ownership of the Common Securities of the such Fund American Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up windup or liquidate the Trust other than such Fund American Trust, except (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred Securities in liquidation of the such Fund American Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Declaration of Trust Agreement and (iii) to use its reasonable commercial best efforts, consistent with the terms and provisions of the Trust Agreementsuch Declaration of Trust, to cause the such Fund American Trust to continue to be taxable remain classified as a grantor trust and not as an association taxable as a corporation for United States Federal income tax purposes.. ARTICLE ELEVEN

Additional Covenants. (a) The Company covenants and agrees with -------------------- each Holder of Securities of a series issued to a Commonwealth Bankshares Capital Trust that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall will not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock (which includes common and preferred stock), or (ii) make any payment of principal of or any principal, interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company (including Other Debentures) that rank pari passu in all respects with or junior in interest to the ---- ----- Securities of such series or (iii) make any guarantee payments with respect to any guarantee by the Company of debt securities of any subsidiary of the Company (including Other Guarantees) if such guarantee ranks pari passu with or junior ---- ----- in interest to the Securities (other than (Aa) repurchasesdividends or distributions in Common Stock of the Company, redemptions (b) any declaration of a dividend in connection with the implementation of a stockholders' rights plan, or other the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, (c) payments under the Company Guarantee, (d) purchases or acquisitions of shares of capital stock of the Company Company's Common Stock in connection with the satisfaction by the Company of its obligations under any employment contract, employee benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock contractual obligation of the Company (other than a contractual obligation ranking pari passu with or securities convertible into or exercisable for such capital stock) as consideration junior in an acquisition transaction entered into prior interest to the applicable Extension Periodthese Securities), ---- ----- (Be) as a result of an a reclassification of the Company's capital stock or the exchange or conversion of any one class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any another class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (Cf) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged), if at such time (i) there shall have occurred an Event of Default, (Dii) the Company shall be in default with respect to its payment of any declaration obligations under the related Company Guarantee or (iii) the Company shall have given notice of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant theretoits election to begin an Extension Period as provided herein and shall not have rescinded such notice, or (E) such Extension Period, or any dividend in the form of stockextension thereof, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) shall be continuing. The Company also covenants with each Holder of Securities of a series issued to a Commonwealth Bankshares Capital Trust (i) to holdmaintain directly, directly or indirectlyindirectly through a wholly owned Subsidiary, one hundred percent (100%) % ownership of the Common Securities of the such Commonwealth Bankshares Capital Trust, ; provided, however, -------- ------- that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust other than such Commonwealth Bankshares Capital Trust, except (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred Capital Securities in liquidation of the such Commonwealth Bankshares Capital Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement and (iii) to use its reasonable commercial best efforts, consistent with the terms and provisions of the such Trust Agreement, (x) not to cause the Trust to continue to be taxable adversely affect such Commonwealth Bankshares Capital Trust's status as a grantor trust and (y) not to cause such Commonwealth Bankshares Capital Trust to be classified as an association taxable as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is the same stock Equity Interests as that on which the dividend is being paid or ranks pari passu with or junior to such stockEquity Interests). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of each series that if an Event of Default it shall have occurred not, and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not permit any Subsidiary of the Company to, (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu with or junior in all respects interest to the Securities of such series or (iii) make any guarantee payments with respect to any guarantee by the Company of debt securities of any subsidiary of the Company if such guarantee ranks pari passu with or junior in interest to the Securities (other than (Aa) repurchases, redemptions dividends or other acquisitions of shares of capital stock of the Company distributions in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Db) any declaration of a dividend in connection with any Rights Plan, the issuance implementation of rights, stock or other property under any a Rights Plan or the redemption or repurchase of any rights distributed pursuant theretoto a Rights Plan, (c) payments under the Guarantee with respect to the Preferred Securities relating to Securities of such Series, and (d) purchases of Common Stock related to the issuance of Common Stock or rights or options under any of the Company's benefit plans for its directors, officers, employees or other persons within the definition of "employee" for purposes of a registration of shares for an employee benefit plan of the Company, related to the issuance of Common Stock or rights under a dividend reinvestment and stock purchase plan, or related to the issuance of Common Stock (Eor securities convertible or exchangeable for Common Stock) as consideration in an acquisition transaction) if at such time (x) there shall have occurred any dividend in event of which the form Company has actual knowledge that (A) with the giving of stock, warrants, options or other rights where the dividend stock notice or the stock issuable upon exercise lapse of time or both, would constitute an Event of Default with respect to the Securities of such warrants, options or other rights is the same stock as that on series and (B) in respect of which the dividend is being paid Company shall not have taken reasonable steps to cure, (y) if the Securities of such series are held by a Trust, the Company shall be in default with respect to its payment of any obligations under the Guarantee relating to the Preferred Securities issued by such Trust or ranks pari passu (z) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or junior to such stock). (b) Extension Period, or any extension thereof, shall be continuing. The Company also covenants with each Holder of Securities of a series issued to a Trust (i) to hold, maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the such Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust other than such Trust, except (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred Trust Securities of such Trust in liquidation of the such Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Trust to continue to be taxable remain classified as a grantor trust and not be taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities Debentures that so long as the Debentures are outstanding, if (i) there shall have occurred any event of which the Company has actual knowledge that (A) with the giving of notice or the lapse of time or both, would constitute an Event of Default shall have occurred hereunder and be continuing or (B) in respect of which the Company shall not have given notice of its election taken 55 reasonable steps to begin an Extension Period cure, or (ii) the Company shall be in default with respect to its payment of any obligations under the Securities Guarantee, then the Company shall not, and shall cause any Subsidiary not have rescinded such noticeto, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, stock or (iiy) make any payment of principal of or any principal, interest or premium premium, if any, on or repay, repurchase or redeem any debt securities (including guarantees of indebtedness for money borrowed) of the Company that rank pari passu in all respects with or junior in interest to the Securities Debentures (other than (A1) repurchasesany dividend, redemption, liquidation, interest, principal or guarantee payment by the Company where the payment is made by way of securities (including capital stock) that rank pari passu with or junior to the securities on which such dividend, redemption, interest, principal or guarantee payment is being made, (2) redemptions or other acquisitions purchases of shares of capital stock of any rights pursuant to any stockholder rights agreement now in existence or subsequently entered into by the Company in connection with any employment contract, benefit plan or other similar arrangement with or for and the benefit declaration of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment of such rights or stockholder stock purchase plan or in connection with the issuance of capital preferred stock under such plans in the future, (3) payments under the Guarantee, (4) purchases of Company Common Stock related to the issuance of Company Common Stock under any of the Company (Company's benefit plans for its directors, officers or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Periodemployees, (B5) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series reclassification of the Company's capital stock or the exchange or conversion of any one series or class or series of the Company's indebtedness for any class or series of the Company's capital stock, stock for another series or class of the Company's capital stock and (C6) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) . The Company also covenants with each Holder of Securities the Debentures (i) that for so long as Preferred Securities are outstanding not to hold, convert the Debentures except pursuant to a notice of conversion delivered to the Conversion Agent by a holder of Preferred Securities and (ii) to maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (iiiii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up up, liquidate or liquidate dissolve the Trust other than Trust, except (Aa) in connection with a distribution of the Securities Debentures to the holders of the Preferred Securities in liquidation dissolution of the Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iiiiv) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, Agreement to cause the Trust to continue to be taxable as remain a grantor business trust and not to be classified as an association taxable as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or 57 EXHIBIT D consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodPeriod or Event of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if (i) there shall have occurred any event that would constitute an Event of Default or (ii) the Company shall have occurred and be continuing in default with respect to its payment of any obligations under the Preferred Guarantee or Common Guarantee, or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to defer payments of interest on the Securities by extending the interest payment period as provided in this Supplemental Indenture No. 1 and shall not have rescinded such notice, or such Extension Periodperiod, or any extension thereof, shall be continuing, it then (a) the Company shall not (i) declare or pay any dividends or distributions dividend on, make any distribution with respect to, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, to any of its Capital Stock (other than (i) purchases or acquisitions of shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or Common Stock in connection with the issuance of capital stock of satisfaction by the Company (of its obligations under any employee benefit plans or securities convertible into the satisfaction by the Company of its obligation pursuant to any contract or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior security requiring it to the applicable Extension Periodpurchase shares of its Common Stock, (Bii) as a result of an a reclassification of the Company's Capital Stock or the exchange or conversion of any one class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) Capital Stock for any another class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stockits Capital Stock, (Ciii) the purchase of fractional interests in shares of the Company's capital stock Capital Stock pursuant to an acquisition or the conversion or exchange provisions of such capital stock Capital Stock or the security being converted or exchanged, and (Div) redemptions or purchases pursuant to the Rights Agreement), (b) the Company shall not make any declaration payment of a dividend in connection with any Rights Planprincipal, the issuance of rightspremium, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant theretoif any, or (E) interest on or repay, repurchase or redeem any dividend in debt securities issued by the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as Company that on which the dividend is being paid or ranks rank pari passu with or junior to such stockthe Securities, and (c) the Company shall not make any guarantee payments with respect to the foregoing (other than pursuant to either of the Guarantees, the Common Securities Guarantee Agreement and the Capital Securities Guarantee Agreement). (b) . The Company also covenants with each Holder of Securities agrees (i) to hold, directly or indirectly, one hundred percent (indirectly maintain 100%) % ownership of the Common Securities of the TrustSecurities; provided, providedhowever, that any permitted successor of the Company hereunder under the Indenture may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust other than Trust, except (Aa) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as remain a grantor trust and not to be classified as an association taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants 6.1.1 During the period from the date the of Agreement and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or until Closing the Parties hereby agree that, the Company shall have given notice not (and Seller shall not cause or permit the Company to): (i) hire or fire any executive officers or senior management of the Company; (ii) amend, waive or otherwise change, in any respect, the Company’s certificate of incorporation or bylaws; (iii) issue, sell, assign, transfer, encumber, hypothecate or otherwise dispose of any equity interests of the Company or options, warrants or securities or rights to acquire or convert into equity interests of the Company; (iv) sell, assign, transfer, license, encumber, hypothecate or otherwise dispose of any material assets of the Company outside of the ordinary course of business; (v) pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such noticeshares, or such Extension Perioddirectly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities; (vi) acquire, including by merger, consolidation, acquisition of stock or assets, or any extension other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, shall be continuingor any material amount of assets outside the ordinary course of business; (vii) incur, it shall not create, assume, prepay or otherwise become liable for any Indebtedness (i) declare as such term is defined in the Note), make a loan or pay advance to or investment in any dividends or distributions onthird party, or redeem purchaseguarantee or endorse any Indebtedness, acquire liability or make a liquidation payment with respect toobligation of any person; (viii) terminate, waiver or assign any shares material rights under any material contracts of the Company's capital stock; (ix) waive, release, assign, settle or compromise any Action (iiincluding any Action, relating to this Agreement or the transactions contemplated hereby); (x) make any payment of principal of enter into, amend, waive or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities terminate (other than terminations in accordance with their terms) any contract or transaction with Buyer or its affiliates (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of than the Company) for or any class stockholder, officer, director, employee or series independent contractor of any of the Company's capital stock foregoing or any of their respective immediately family members; or (xi) agree, authorize or commit to do any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock)foregoing actions. (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock (for the avoidance of doubt, the term “capital stock” includes both common stock and preferred stock of the Company), (ii) vote in favor of or permit or otherwise allow any of its subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of such subsidiaries’ preferred stock (for the avoidance of doubt, whether such preferred stock is perpetual or otherwise) except for payments of dividends or distributions to the Company, or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal federal income tax purposes. (c) The Company also agrees to use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 31, 2006 and all future fiscal years, as a real estate investment trust under the Internal Revenue Code of 1986, as amended. (d) The Company shall notify in writing, within five (5) Business Days of the occurrence thereof, the Trustee and each holder of Preferred Securities of the occurrence of a Significant Event (the “Significant Event Notice”). If the Company and the Trustee shall have received within thirty (30) days from the holders of the Preferred Securities’ receipt of the Significant Event Notice, written notice from at least 25% of the holders of the Preferred Securities electing to cause either the Defeasance (if during the No Call Period) or redemption (if after the expiration of the No Call Period), as applicable, of the Notes as provided in this Section 10.6(d) (a “Significant Event Election”), then the Company shall either (i) if such Significant Event occurs during the No Call Period, cause Article XIII to be applied to the Outstanding Securities, or (ii) if such Significant Event occurs after the expiration of the No Call Period, redeem the Notes pursuant to Section 11.2.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if (i) there shall have occurred any event that would constitute an Event of Default (as defined herein) or (ii) the Company shall have occurred and be continuing in default with respect to its payment of any obligations under the Guarantee or Common Securities Guarantee, or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to defer payments of interest on such Securities by extending the Securities interest payment period as provided in this Supplemental Indenture No. 3 and shall not have rescinded such notice, or such Extension Periodperiod, or any extension thereof, shall be continuing, it then (a) the Company shall not (i) declare or pay any dividends or distributions dividend on, make any distribution with respect to, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, to any of its capital stock (other than (i) purchases or acquisitions of shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or Common Stock in connection with the issuance of capital stock of satisfaction by the Company (of its obligations under any employee benefit plans or securities convertible into the satisfaction by the Company of its obligation pursuant to any contract or exercisable for such capital security requiring it to purchase shares of its common stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bii) as a result of an a reclassification of the Company's capital stock or the exchange or conversion of any one class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any another class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's its capital stock, (Ciii) the purchase of fractional interests in shares of the Company's capital stock pursuant to an acquisition or the conversion or exchange provisions of such capital stock or the security being converted or exchanged, and (Div) redemptions or purchases pursuant to the Company's Rights Agreement, dated August 7, 1995, between the Company and AmSouth Bank of Alabama as Rights Agent), (b) the Company shall not make any declaration payment of a dividend in connection with any Rights Planprincipal, the issuance of rightspremium, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant theretoif any, or (E) interest on or repay, repurchase or redeem any dividend in debt securities issued by the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as Company that on which the dividend is being paid or ranks rank pari passu with or junior to such stockthe Securities and (c) the Company shall not make any guarantee payments with respect to the foregoing (other than pursuant to either of the Guarantees or the Series A Guarantee). (b) . The Company also covenants with each Holder of Securities agrees (i) to hold, directly or indirectly, one hundred percent (indirectly maintain 100%) % ownership of the Common Securities of the TrustSecurities; provided, providedhowever, that any permitted successor of the Company hereunder under the Indenture may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust other than PLC Capital, except (Aa) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust PLC Capital, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the Declaration of Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust AgreementDeclaration of Trust, to cause the Trust PLC Capital to continue to be taxable as remain a grantor trust and not to be classified as an association taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu PARI PASSU in all respects with or junior in interest to the Securities of such series (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bb) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (Cc) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu PARI PASSU with or junior to such stock). ) if at such time (bi) there shall have occurred any event (A) of which the Company has actual knowledge that with the giving of notice or the lapse of time, or both, would constitute an Event of Default with respect to the Securities of such series, and (B) which the Company shall not have taken reasonable steps to cure, (ii) if the Securities of such series are held by an Issuer Trust, the Company shall be in default with respect to its payment of any obligations under the Guarantee Agreement relating to the Capital Securities issued by such Issuer Trust, or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company also covenants with each Holder of Securities of a series issued to an Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such Issuer Trust, provided, PROVIDED that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust such Issuer Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred related Capital Securities in liquidation of the Trust such Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Issuer Trust to continue not to be taxable as a grantor trust and not as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not, and shall not allow any Affiliate of the Company to, (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stockstock or its Affiliates’ capital stock (other than payments of dividends or distributions to the Company), or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities Senior Notes that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares Equity Interests of the Company's capital stock, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any preferred Equity Interests of such Subsidiaries or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities Senior Notes (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock Equity Interests purchase plan or in connection with the issuance of capital stock of Equity Interests in the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange exchange, conversion reclassification or conversion combination of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock of Equity Interests in a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares the Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interest or the stock Equity Interest issuable upon exercise of such warrants, options or other rights is the same stock Equity Interest as that on which the dividend is being paid or ranks pari passu with or junior to such stockEquity Interest). (b) The Company also covenants with shall notify in writing, within ten (10) Business Days after the occurrence thereof, the Trustee and each Holder of Securities the occurrence of a Change of Control (the “Change of Control Notice”). If the Company and the Trustee shall have received, within thirty (30) days after delivering the Holders the Change of Control Notice written notice from any Holder of its election to cause the Defeasance or redemption, as applicable, of the Senior Notes as provided in this Section 10.5(b) (the “Change of Control Election”), then the Company shall cause Article XII to be applied to the Electing Senior Notes. (c) The Company agrees to use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 31, 2009, and all future fiscal years, as a real estate investment trust under the Code, provided that this subsection (c) shall not require the Company to make any payment in violation of Section 10.5(a) or Section 10.5(g). (d) Without the express, prior and written consent of the Holders of not less than a majority in principal amount of the Outstanding Senior Notes, for so long as Senior Notes are Outstanding under this Indenture, and from the date hereof until the end of the Modification Period, the Company shall not, nor shall it permit its Subsidiaries to, create, incur, issue or otherwise become liable for any Debt, other than (i) Debt in the form of trade Debt or similar Debt incurred in the ordinary course of the Company’s business, (ii) Debt that is incurred solely in exchange for or to provide the funds necessary to repurchase, redeem, refinance or satisfy, in whole or in part, the Debt described in Exhibit C and (iii) Debt that is incurred solely in exchange for Debt outstanding under the Original Indentures. (e) The Company covenants and agrees that it will not permit the Debt Service Coverage Ratio at the end of each fiscal quarter to be less than (i) so long as any Senior Secured Debt or Debt ranking pari passu with the Senior Notes shall be outstanding and the minimum debt service coverage covenant in the documents evidencing or governing such Debt is less restrictive than a minimum ratio of 1.20 to 1.00, the minimum debt service coverage ratio set forth in such Debt documents and, (ii) at all other times, 1.20 to 1.00. (f) The Company covenants and agrees that it shall maintain, as of the end of each fiscal quarter, (i) Tangible Net Worth of at least $300,000,000 and (ii) a Debt-to-Total Capitalization Ratio of 95% or less. (g) Without limiting Section 10.5(a) above, the Company covenants and agrees that, from the date hereof until the end of the Modification Period, the Company shall not declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Company’s Equity Interests, other than (a) with the prior, express, written consent of the Holders of not less than a majority in principal amount of the Outstanding Senior Notes, or (b) dividends or distributions which are reasonably necessary to maintain the REIT status of the Company for federal income and excise tax purposes and avoid imposition of federal income and excise tax on the Company with respect to such distributed taxable income or net capital gains; provided, that such distributions or dividends as described in clause (b) above shall (i) to hold, directly or indirectly, one hundred percent (100%) the extent paid to holders of the Common Securities Company’s common stock (A) not be in excess of $2,500,000 (in the aggregate in cash) and (B) be in the form of the TrustCompany’s common stock to the maximum extent permissible as stated by the Internal Revenue Service regulations, providedrulings, that any permitted successor revenue procedures, notices, announcements, or other authoritative pronouncements at the time of such dividend or distribution with only the balance payable in cash, and (ii) to the extent paid to holders of the Company’s preferred stock, be in an amount no greater than that required to be distributed to such holders to permit the distributions and dividends to holders of the Company’s common stock permitted by clause (i) above. (h) The Company hereunder may succeed covenants and agrees that it will (i) provide to the Company's ownership Holders, within five (5) Business days of such Common Securitiesthe execution thereof, copies of any documents, indentures and agreements relating to any exchange by the holders thereof of any notes issued under the Original Indentures, other than under the Exchange Agreement, (ii) execute such supplemental indentures as holder the Holders (or any of them) may reasonably request in order to confer upon the Holders the benefit of any terms of such Common Securitiesdocuments, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) indentures and agreements executed in connection with a distribution of any such exchange transaction that are more favorable than the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement terms hereof and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, efforts to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposesobtain all consents required in connection therewith.

Additional Covenants. (a) The Company covenants and agrees with each Holder holder of Securities of a series issued to a Bear ▇▇▇▇▇▇▇ Trust that if an Event it will not, and it will not permit any Subsidiary of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such noticeto, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock (which includes common and preferred stock), or (ii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities of such series or make any guarantee payments with respect to any Bear ▇▇▇▇▇▇▇ Guarantee or other guarantee by the Company of debt securities of any Subsidiary of the Company that by their terms rank pari passu with or junior in interest to the Securities of such series (other than (Aa) repurchases, redemptions dividends or other acquisitions of shares of distributions in capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company Company; (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Db) any declaration of a dividend in connection with the implementation of a Rights Plan, or the issuance of capital stock of the Company under any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of any rights distributed pursuant thereto, or to a Rights Plan; (Ec) payments under any dividend Bear ▇▇▇▇▇▇▇ Guarantee (as defined herein and in the form Existing Indenture); (d) purchases of stockcommon stock related to the issuance of common stock under any of the Company's benefit plans for its directors, warrants, options officers or other rights where employees; and (e) payments of interest pursuant to the dividend stock EPICS Loan Agreement) if at such time (i) there shall have occurred any event of which the Company has actual knowledge that (a) with the giving of notice or the stock issuable upon exercise lapse of such warrantstime or both, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). would constitute an Event of Default hereunder and (b) in respect of which the Company shall not have taken reasonable steps to cure, (ii) the Company shall be in default with respect to its payment of any obligations under the related Bear ▇▇▇▇▇▇▇ Guarantee or (iii) the Company shall have given notice of its election to begin an Extension Period as provided herein and shall not have rescinded such notice, or such period, or any extension thereof, shall be continuing. The Company also covenants with each Holder holder of Securities of a series issued to Bear ▇▇▇▇▇▇▇ Trust (i) to hold, maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the such Bear ▇▇▇▇▇▇▇ Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-wind up or liquidate the Trust other than such Bear ▇▇▇▇▇▇▇ Trust, except (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred Securities in liquidation of the such Bear ▇▇▇▇▇▇▇ Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Trust to continue to be taxable remain classified as a grantor trust and not an association taxable as a corporation for United States Federal federal income tax purposes. The Company also covenants and agrees with each holder of Securities of a series issued to a Bear ▇▇▇▇▇▇▇ Trust that it will pay all debts and other obligations (other than with respect to the Preferred Securities) and all costs and expenses of the Bear ▇▇▇▇▇▇▇ Trust (including costs and expenses relating to the organization of the Bear ▇▇▇▇▇▇▇ Trust, the fees and expenses of the trustees of such Bear ▇▇▇▇▇▇▇ Trust and the costs and expenses relating to the operation of the Bear ▇▇▇▇▇▇▇ Trust) and the offering of the Preferred Securities and to pay any and all taxes and all costs and expenses with respect to the foregoing (other than United States withholding taxes) to which the Bear ▇▇▇▇▇▇▇ Trust might become subject. The foregoing obligations of the Company are for the benefit of, and shall be enforceable by, any person to whom any such debts, obligations, costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor has received notice thereof. Any such Creditor may enforce such obligations of the Company directly against the Company and the Company has irrevocably waived any right or remedy to require that any such Creditor take any action against the Bear ▇▇▇▇▇▇▇ Trust or any other person before proceeding against the Company.

Additional Covenants. (a) The Company covenants and agrees with -------------------- each Holder holder of Securities of a series issued to a DPL Trust that it shall not, and it shall cause any Subsidiary not to, (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any shares of the Company's Capital Stock (which includes Common Stock and preferred stock), or (ii) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities that rank on a parity with or junior to the Securities of such series or make any guarantee payments with respect to any DPL Guarantee or other guarantee by the Company that ranks on a parity with or junior to the Securities of such series (other than (a) dividends or distributions payable in Common Stock; (b) any declaration of a dividend in connection with the implementation of a Rights Plan, the issuance of any Capital Stock of any class or series of preferred stock of the Company under any Rights Plan or the redemption or repurchase of any rights distributed pursuant to a Rights Plan; (c) payments under any DPL Guarantee relating to the Preferred Securities issued by the DPL Trust holding the Securities of such series; and (d) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Company's benefit plans for its directors, officers, employees, consultants or advisors) if at such time (i) there shall have occurred any event of which the Company has actual knowledge that (a) with the giving of notice or the lapse of time or both, would constitute an Event of Default hereunder and (b) in respect of which the Company shall not have occurred and taken reasonable steps to cure, (ii) the Company shall be continuing in default with respect to its payment of any obligations under the related DPL Guarantee or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities as provided in SECTION 2.10 and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) . The Company also covenants with each Holder holder of Securities of a series issued to a DPL Trust (i) to hold, maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the such DPL Trust; provided, providedhowever, that any permitted successor or assignee of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-wind up or liquidate the Trust other than such DPL Trust, except (Aa) in connection with a prepayment in full of the Securities or a distribution of the Securities of such series to the holders of the Preferred Securities in liquidation of the such DPL Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the relevant Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such DPL Trust to continue to be taxable remain classified as a grantor trust and not an association taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company Corporation covenants and agrees with each Holder of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Corporation that rank pari passu in all respects with or junior in interest to the Securities of such series, or (y) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the CompanyCorporation's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities stock (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company Corporation in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company Corporation (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bb) as a result of an exchange or conversion of any class or series of the CompanyCorporation's capital stock (or any capital stock of a Subsidiary of the CompanyCorporation) for any class or series of the CompanyCorporation's capital stock or of any class or series of the CompanyCorporation's indebtedness for any class or series of the CompanyCorporation's capital stock, (Cc) the purchase of fractional interests in shares of the CompanyCorporation's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). ) if at such time (bi) there shall have occurred any event (A) of which the Corporation has actual knowledge that with the giving of notice or the lapse of time, or both, would constitute an Event of Default with respect to the Securities of such series, and (B) which the Corporation shall not have taken reasonable steps to cure, (ii) if the Securities of such series are held by an Issuer Trust, the Corporation shall be in default with respect to its payment of any obligations under the Guarantee Agreement relating to the Capital Securities issued by such Issuer Trust, or (iii) the Corporation shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company Corporation also covenants with each Holder of Securities of a series issued to an Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such Issuer Trust, provided, provided that any permitted successor of the Company Corporation hereunder may succeed to the CompanyCorporation's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust such Issuer Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred related Capital Securities in liquidation of the Trust such Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Issuer Trust to continue not to be taxable as a grantor trust and not as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have consisting of a failure to pay interest or principal on the Securities has occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be is continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock (for the avoidance of doubt, the term “capital stock” includes both common stock and preferred stock of the Company), (ii) vote in favor of or permit or otherwise allow any of its subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of such subsidiaries preferred stock (for the avoidance of doubt, whether such preferred stock is perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or any incentive or compensation plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Periodsuch Event of Default, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, (E) or the issuance of shares, stock appreciation rights restricted stock units, dividend equivalents, restricted stock unit awards, performance awards, Other Stock-Based Awards or any other right or cash that may be awarded under any Company incentive or compensation plan, or (EF) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes. (c) The Company also agrees to use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 31, 2005, as a real estate investment trust under the Internal Revenue Code of 1986, as amended.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (y) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return (iifor the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise) other than to the Company or (z) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock Equity Securities of the Company (or securities convertible into or exercisable for such capital stockEquity Securities) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Securities of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares of the Company's capital stock ’s Equity Interests pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock, or (F) any declaration or payment of a dividend or other distribution in order for the Company to maintain its status as a REIT, provided that any such declaration or payment shall be in the form of stock to the extent permitted by the Code and commercially reasonable to do so). (b) The Company also covenants and agrees with each Holder of Securities (i) to holdthat during the period commencing on the date hereof and continuing through April 30, directly 2012, it shall not declare or indirectlypay dividends or distributions on, one hundred percent (100%) or redeem, purchase, or acquire any of the Common Company’s Equity Interests (for the avoidance of doubt the Original Preferred Securities (as defined in the Exchange Agreement) shall not be deemed to be Equity Interests of the TrustCompany), providedexcept for (A) repurchases, that any permitted successor redemptions or other acquisitions of Equity Interests of the Company hereunder may succeed to in connection with any employment contract, benefit plan or other similar arrangement with or for the Company's ownership benefit of such Common Securitiesany one or more employees, (ii) as holder of such Common Securitiesofficers, not to voluntarily dissolvedirectors or consultants, wind-up or liquidate the Trust other than (A) in connection with a distribution dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of Equity Securities of the Securities to the holders of the Preferred Securities Company (or securities convertible into or exercisable for such Equity Securities) as consideration in liquidation of the Trust or an acquisition transaction, (B) as a result of an exchange or conversion of any class or series of the Company’s Equity Interests (or any Equity Securities of a Subsidiary of the Company) for any class or series of the Company’s Equity Interests or of any class or series of the Company’s indebtedness for any class or series of the Company’s Equity Interests, (C) the purchase of fractional interests in shares of the Company’s Equity Interests pursuant to the conversion or exchange provisions of such Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with certain mergersany Rights Plan, consolidations the issuance of rights, stock or amalgamations other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, (E) any dividend in the form of Equity Interests, warrants, options or other rights exercisable for Equity Interests, or (F) any declaration or payment of a dividend or other distribution in order for the Company to maintain its status as a REIT, provided that any such declaration or payment shall be in the form of stock to the extent permitted by the Trust Agreement Code and commercially reasonable to do so. (iiic) As of the date hereof, the Company is qualified as a real estate investment trust (a “REIT”) under the Code and no circumstance or event has occurred that would disqualify the Company as a REIT. Subject to the Company’s right to merge into an entity that is not a real estate investment trust pursuant to Section 8.1 hereof, the Company agrees to use its commercially reasonable commercial effortsefforts to, consistent with at all times meet the terms requirements to qualify as a REIT unless and provisions until the Board of Directors of the Trust Agreement, to cause Company determines that it is not in the Trust to continue best interests of the Company to be taxable organized as a grantor trust and not as a corporation for United States Federal income tax purposesREIT.

Additional Covenants. (a) The Company Corporation covenants and agrees with each Holder of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the CompanyCorporation's capital stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company Corporation that rank pari passu in all respects with or junior in interest to the Securities of such series (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company Corporation in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company Corporation (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bb) as a result of an exchange or conversion of any class or series of the CompanyCorporation's capital stock (or any capital stock of a Subsidiary of the CompanyCorporation) for any class or series of the CompanyCorporation's capital stock or of any class or series of the CompanyCorporation's indebtedness for any class or series of the CompanyCorporation's capital stock, (Cc) the purchase of fractional interests in shares of the CompanyCorporation's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). ) if at such time (bi) there shall have occurred any event (A) of which the Corporation has actual knowledge that with the giving of notice or the lapse of time, or both, would constitute an Event of Default with respect to the Securities of such series, and (B) which the Corporation shall not have taken reasonable steps to cure, (ii) if the Securities of such series are held by an Issuer Trust, the Corporation shall be in default with respect to its payment of any obligations under the Guarantee Agreement relating to the Preferred Securities issued by such Issuer Trust, or (iii) the Corporation shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company Corporation also covenants with each Holder of Securities of a series issued to an Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such Issuer Trust, provided, provided that any permitted successor of the Company Corporation hereunder may succeed to the CompanyCorporation's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust such Issuer Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the related Preferred Securities in liquidation of the Trust such Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Issuer Trust to continue not to be taxable as a grantor trust and not as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay (other than to the Company or a Subsidiary of the Company) any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary's preferred stock or other capital stock (not held by the Company or a Subsidiary of the Company) entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred stock or other capital stock are perpetual or otherwise) except where any such dividends, distributions, redemptions, purchases, acquisitions, liquidation payments or retirements are required by the organizational documents of, or other agreements binding on, such Subsidiary or otherwise required in order to make concurrent or future distributions to the Company or a Subsidiary of the Company, or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company or any of its Subsidiaries in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company or any of its Subsidiaries (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange exchange, conversion, reclassification or conversion combination of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's or a Subsidiary's capital stock or of any class or series of the Company's or a Subsidiary's indebtedness for any class or series of the Company's or a Subsidiary's capital stock, (C) the purchase of fractional interests in shares of the Company's or a Subsidiary's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees Guarantor covenant and agree with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s or the Guarantor’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its respective Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return, other than dividends or distributions on Equity Interests payable to the Guarantor, the Company or any Subsidiary thereof (for the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company or Guarantor that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company or Guarantor in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock Equity Interests of the Company or Guarantor (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s or the Guarantor’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the CompanyCompany or Guarantor) for any class or series of the Company's capital stock ’s or the Guarantor’s Equity Interests or of any class or series of the Company's ’s or the Guarantor’s indebtedness for any class or series of the Company's capital stock’s or the Guarantor’s Equity Interests, (C) the purchase of fractional interests in shares of the Company's capital stock ’s or the Guarantor’s Equity Interests pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interest or the stock Equity Interest issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks rank pari passu with or junior to such stockEquity Interests). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes. (c) The Guarantor agrees that the Guarantor will use its commercially reasonable efforts to meet the requirements to qualify as a REIT under Sections 856 through 860 of the Code for the taxable year ending December 31, 2007, and unless and until the Board of Directors of the Guarantor determines that it is in the best interests of the Guarantor not to be organized as a REIT, the Guarantor will be organized in conformity with the requirements for qualification as a REIT under the Code. (d) The Surviving Entity shall notify in writing the Trustee and each holder of Securities of the occurrence of a Change of Control Event not more than twenty (20) Business Days following the occurrence thereof.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that so long as the Debentures are outstanding, if an Event of Default at any time (x) there shall have occurred and be continuing an Indenture Event of Default or any event of which the Company has actual knowledge that (A) with the giving of notice or the lapse of time or both, would constitute an Indenture Event of Default and (B) the Company shall not have taken reasonable steps to cure, (y) the Debentures are held by the Trust and the Company shall have given notice of its election to begin an Extension Period defaulted with respect to its payment of any obligations under the Securities Guarantee and shall not have rescinded such notice, or such Extension Period, or any extension thereof, default shall be continuing, it or (z) the Company has exercised its option pursuant to Section 3.12 to defer interest payments on the Debentures and the Deferral Period shall be continuing, then the Company shall not, and shall cause each of its Subsidiaries not to, (i) declare or pay any dividends or distributions on, or make a distribution with respect to, or redeem purchaseor purchase or acquire, acquire or make a liquidation payment with respect to, any shares of the Company's its capital stock, stock or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt other equity securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions any purchase or other acquisitions acquisition of shares of capital stock of the Company in connection with any employment contract, benefit plan Common Stock (or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or Common Stock equivalents) in connection with the issuance satisfaction by the Company or the Subsidiary of capital stock its obligations under any employee benefit plan or the satisfaction by the Company or the Subsidiary of its obligations pursuant to any contract or security requiring the Company or the Subsidiary to purchase Common Stock (or Common Stock equivalents), (B) any purchase of Common Stock (or Common Stock equivalents) from an officer or employee (or a Person performing similar functions) of the Company or any of its Subsidiaries upon termination of employment or retirement not pursuant to any obligation under any contract or security requiring the Company or the Subsidiary to purchase such Common Stock (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodCommon Stock equivalents), (BC) as a result of an a reclassification of the capital stock or other equity securities of the Company or any of its Subsidiaries or the exchange or conversion of any one class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) other equity securities for any another class or series of the Company's capital stock or of any class or series other equity securities of the Company's indebtedness for Company or any class or series of the Company's capital stockits Subsidiaries, (CD) the any dividend or distribution of Common Stock on Common Stock, (E) any purchase of fractional interests in shares capital stock or other equity securities of the Company's capital stock Company or any of its Subsidiaries pursuant to the conversion or exchange provisions of such capital stock or the other equity security being converted or exchanged, (DF) any declaration or payment of a dividend in connection with any Rights Plan, the issuance implementation of rights, stock or other property under any a Rights Plan or the redemption or repurchase of any rights distributed pursuant theretoto a Rights Plan, or (EG) any dividend or distribution by a Subsidiary of the Company to the Company or another Subsidiary of the Company, (H) any distribution by WestCoast Hospitality Limited Partnership ("WHLP") to any Person that is a partner in WHLP for federal income tax purposes so long as (x) at the time of the distribution, the Company has at least an 80% interest in the form income, gain, loss and deductions of stockWHLP, warrantsand (y) such distribution is required by the Amended and Restated Agreement of Limited Partnership of WHLP, options as in effect on the date of original issuance of the Debentures, and (I) any distribution by any other Subsidiary of the Company that is not wholly owned by the Company, so long as none of the holders of equity interests in such Subsidiary have any right to convert such equity securities into, or exchange such equity securities for, Common Stock of the Company; (ii) make any payment of principal of, or premium, if any, or interest on, or repay, repurchase or redeem, any debt securities issued by the Company that rank pari passu with or junior to the Debentures; or (iii) make any guarantee payments with respect to any guarantee (other rights where than the dividend stock or Guarantee) by the stock issuable upon exercise Company of any debt securities of any of its Subsidiaries, if such warrants, options or other rights is the same stock as that on which the dividend is being paid or guarantee ranks pari passu with or junior to such stock)the Debentures. (b) The Company also covenants with and agrees that, so long as the Debentures are outstanding, the Company shall not, and shall cause each Holder of Securities its Subsidiaries not to, incur indebtedness in excess of $100,000 to any Person who is, or who is an Affiliate of, an officer or director of the Company or a Person known by the Company to be the owner of (or a member of a syndicate or group that is treated as a "person" for purposes of Section 13(d) of the Exchange Act and the regulations thereunder and is the owner of) more than 5% of the outstanding shares of the Company's Common Stock except in each case for (i) indebtedness incurred to hold, directly such a Person in connection with the transaction by which such Person or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor its Affiliate becomes an officer or director of the Company hereunder may succeed to or the owner of more than 5% of the outstanding shares of the Company's ownership of such Common Securities, Stock; (ii) as holder indebtedness that is incurred to such a Person by any Subsidiary of the Company formed to implement a joint venture with such Common Securities, Person and that is on terms that are not less favorable to voluntarily dissolve, wind-up or liquidate the Trust other Subsidiary than the terms that would be available in a comparable arm's length transaction; and (Aiii) indebtedness incurred in connection with a distribution transaction approved by a majority of the Securities independent (as defined in Sections 303.01(B)(2)(a) and (3) of the Listed Company Manual of the New York Stock Exchange, or any similar successor listing standard) and disinterested members of the Board of Directors. (c) The Company also covenants and agrees that, so long as the Debentures are outstanding, the Company shall not, and shall cause each of its Subsidiaries not to, engage in any Derivative Offering (as defined below) unless the debt issued to the holders financing entity in such offering is subordinate to or ranks pari passu with the Debentures. "Derivative Offering" means an offering in which (i) a financing entity structured as a trust, limited liability company, partnership or another form of entity is capitalized through the issuance of its preferred securities, and (ii) the financing entity lends the proceeds from the issuance of the Preferred Securities preferred securities to the Company and/or one or more of its Subsidiaries in liquidation of the Trust exchange for its or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposestheir debt securities.

Additional Covenants. (a) The Company covenants and agrees with each Holder for the benefit of the Holders of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall it will not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions (other than divi- dends or distributions in common stock of the Company or other securities, including other securities ranking junior in right of payment to the Securities of such series), on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's its capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks ranking pari passu with or junior in right of payment to the Securities of such series, or make any guarantee payments with respect to the foregoing (other than pro rata payments under the Parent Guar- ▇▇▇▇▇ and any similar Parent Guarantees issued by the Company on behalf of the holders of Preferred Securities issued by any issuer holding Securities) or repurchase, or cause any of the Subsidiaries to repurchase, any securities of the Company rank- ing pari passu with or junior in right of payment to the Secu- rities of such series (except for payments made on any series of Securities upon the stated maturity of such Securities); provided that Western Resources may redeem, purchase, acquire or make a liquidation payment with respect to any of its capi- tal stock). , make any guarantee payment with respect to the fore- going or repurchase, or cause any of its subsidiaries to repur- chase, any security of Western Resources ranking pari passu with or junior in right of payment to the Securities of such series with securities (or the proceeds from the issuance of securities) having no higher ranking than the capital stock or the other securities which are to be redeemed, purchased, acquired, with respect to which a liquidation payment is to be made, to which a guarantee payment is to be made with respect to the foregoing or which are to be repurchased; if at such time (i) there shall have occurred any event of which the Com- pany has actual knowledge that (a) with the giving of notice or the lapse of time or both, would constitute an Event of Default hereunder with respect to Securities of such series and (b) which the Company shall not have taken reasonable steps to cure, (ii) the Company shall be in default with respect to its payment of any obligations under a Parent Guarantee relating to the Preferred Securities of the Trust corresponding to which the Securities of such series have been issued or (iii) the Company shall have given notice of its selection of an Exten- sion Period as provided herein with respect to Securities of such series and such period, or any extension thereof, shall have commenced and be continuing. The Company also covenants with each Holder covenants, for the benefit of the Holders of Securities of each series, (i) to hold, directly or indirectly, one hundred percent (maintain 100%) % own- ership of the Common Securities of the TrustTrust to which the Secu- rities of such series have been issued; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-wind up or liquidate the Trust other than (A) terminate such Trust, except in connection with a distribution of the Securities of such series to the holders of the corresponding Preferred Securities in liquidation of the such Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement relating to such Trust and (iii) to use its reasonable commercial reason- able efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Trust to continue remain a business trust and not to be classified as an association taxable as a grantor trust and not as a corporation corpo- ration for United States Federal income tax purposes.. ARTICLE ELEVEN

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari part passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodPeriod or Event of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights EXHIBIT D pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s preferred stock or other capital stock entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred stock or other capital stock are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, except only to the extent necessary to maintain its status as a real estate investment trust under the Code, provided such distributions to maintain its status as a real estate investment trust under the Code may not be made in any event if there has occurred (x) an Event of Default described in clauses (a), (b), (e) or (f) of Section 5.1 or (y) any Event of Default with respect to which acceleration of principal has been triggered pursuant to Section 5.2, or (z) an Event of Default triggered by a breach of Section 10.9, (ii) vote in favor of or permit or otherwise allow any of its Significant Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Significant Subsidiary’s preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise) if such proceeds are payable to any third party which is not the Company or an affiliate of the Company, or (iii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than with respect to clauses (Ai) and (iii) above, (a) repurchases, redemptions or other acquisitions of shares of capital stock of the Company or any Significant Subsidiary in connection with (1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with (2) a dividend reinvestment or stockholder stock purchase plan or in connection with (3) the issuance of capital stock of the Company or of such Significant Subsidiary (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (Bb) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the CompanySignificant Subsidiary) for any class or series of the Company's ’s capital stock (or in the case of a Significant Subsidiary, any class or series of such Significant Subsidiary’s capital stock) or any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock (or in the case of indebtedness of a Significant Subsidiary, or any class or series of such Significant Subsidiary’s indebtedness for any class or series of such Significant Subsidiary’s capital stock), (Cc) the purchase of fractional interests in shares of the Company's ’s capital stock (or the capital stock of a Significant Subsidiary) pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, thereto or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stockstock and any cash payments in lieu of fractional shares issued in connection therewith). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes. (c) The Company also agrees to use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 31, 2006 and all future fiscal years, as a real estate investment trust under the Internal Revenue Code of 1986, as amended.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of a series issued to a Republic New York Trust that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall will not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any principal, interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company (including Other Debt) that rank pari passu with or junior in all respects interest to the Securities of such series or (iii) make any guarantee payments with respect to any guarantee by the Company of debt securities of any subsidiary of the Company (including Other Guarantees) if such guarantee ranks pari passu with or junior in interest to the Securities (other than (Aa) repurchasesdividends or distributions in Common Stock of the Company, redemptions (b) any declaration of a dividend in connection with the implementation of a stockholders' rights plan, or other the issuance of stock under any such plan in the future, or the redemption or repurchase of any such rights pursuant thereto, (c) payments under the Guarantee Agreement, (d) purchases or acquisitions of shares of capital stock of the Company Company's Common Stock in connection with the satisfaction by the Company of its obligations under any employment contract, employee benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock contractual obligation of the Company (other than a contractual obligation ranking pari passu with or securities convertible into or exercisable for such capital stock) as consideration junior in an acquisition transaction entered into prior interest to the applicable Extension Periodthese Securities), (Be) as a result of an a reclassification of the Company's capital stock or the exchange or conversion of any one class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any another class or series of the Company's capital stock, or (Cf) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged), if at such time (Di) there shall have occurred any declaration event of a dividend in connection which the Company has actual knowledge that (a) with any Rights Plan, the issuance giving of rights, stock or other property under any Rights Plan notice or the redemption lapse of time or repurchase both, would constitute an Event of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). Default hereunder and (b) The Company also covenants with each Holder in respect of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of which the Company hereunder may succeed shall not have taken reasonable steps to the Company's ownership of such Common Securitiescure, (ii) as holder the Company shall be in default with respect to its payment of such Common Securities, not to voluntarily dissolve, wind-up any obligations under the related Republic New York Guarantee or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) the Company shall have given notice of its election to use its reasonable commercial effortsbegin an Extension Period as provided herein and shall not have rescinded such notice, consistent with the terms and provisions of the Trust Agreementor such Extension Period, to cause the Trust to continue to or any extension thereof, shall be taxable as a grantor trust and not as a corporation for United States Federal income tax purposescontinuing.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise) other than the Company, or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, date of the event of default (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares of the Company's capital stock ’s Equity Interests pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari pan/ passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock (for the avoidance of doubt, the term "capital stock" includes both common stock and preferred stock of the Company), (ii) vote in favor of or permit or otherwise allow any of its subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of such subsidiaries preferred stock (for the avoidance of doubt, whether such preferred stock is perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Periodsuch Event of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes. (c) The Parent Guarantor, as defined in the Purchase Agreement, also agrees to use its reasonable best efforts to meet the requirements to qualify for the fiscal year ending December 31, 2005 as a real estate investment trust under the Internal Revenue Code of 1986, as amended.

Additional Covenants. (a) The Company covenants and agrees with each Holder holder of Securities of a series issued to an Aon Trust that it shall not, and it shall cause any Subsidiary not to, (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any shares of the Company’s Capital Stock (which includes Common Stock and preferred stock), or (ii) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank on a parity with or junior to the Securities of such series or make any guarantee payments with respect to any Aon Guarantee or other guarantee by the Company of debt securities of any Subsidiary that by its terms ranks on a parity with or junior to the Securities of such series (other than (a) dividends or distributions in Common Stock; (b) any declaration of a dividend in connection with the implementation of a Rights Plan, the issuance of any Capital Stock of any class or series of preferred stock of the Company under any Rights Plan or the redemption or repurchase of any rights distributed pursuant to a Rights Plan; (c) payments under any Aon Guarantee relating to the Preferred Securities issued by the Aon Trust holding the Securities of such series; and (d) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Company’s benefit plans for its directors, officers, employees, consultants or advisors) if at such time (i) there shall have occurred any event of which the Company has actual knowledge that (a) with the giving of notice or the lapse of time or both, would constitute an Event of Default hereunder and (b) in respect of which the Company shall not have occurred and taken reasonable steps to cure, (ii) the Company shall be continuing in default with respect to its payment of any obligations under the related Aon Guarantee or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities as provided in Section 2.10 and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) . The Company also covenants with each Holder holder of Securities of a series issued to an Aon Trust (i) to hold, maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the such Aon Trust; provided, providedhowever, that any permitted successor or assignee of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-wind up or liquidate the Trust other than such Aon Trust, except (Aa) in connection with a prepayment in full of the Securities or a distribution of the Securities of such series to the holders of the Preferred Securities in liquidation of the such Aon Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the relevant Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Aon Trust to continue to be taxable remain classified as a grantor trust and not an association taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company Corporation covenants and agrees with each Holder of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Corporation that rank pari passu in all respects with or junior in interest to the Securities of such series, or (y) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the CompanyCorporation's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities stock (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company Corporation in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company Corporation (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bb) as a result of an exchange or conversion of any class or series of the CompanyCorporation's capital stock (or any capital stock of a Subsidiary of the CompanyCorporation) for any class or series of the CompanyCorporation's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company Corporation also covenants with each Holder of Securities of a series issued to an Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such Issuer Trust, provided, provided that any permitted successor of the Company Corporation hereunder may succeed to the CompanyCorporation's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust such Issuer Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred related Capital Securities in liquidation of the Trust such Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Issuer Trust to continue to be taxable as a grantor trust and not to be taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company Each of the Bank and the Debenture Guarantor covenants and agrees with each Holder of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stockstock of the Bank or the Debenture Guarantor, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company Bank or the Debenture Guarantor that rank pari passu PARI PASSU in all respects with or junior in interest to the Securities of such series and the Guarantee relating to such Series, respectively (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company Bank or the Debenture Guarantor in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company Bank or the Debenture Guarantor (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bb) as a result of an exchange or conversion of any class or series of the CompanyBank's or the Debenture Guarantor's capital stock (or any capital stock of a Subsidiary of the CompanyBank or the Debenture Guarantor) for any class or series of the CompanyBank's or the Debenture Guarantor's capital stock or of any class or series of the CompanyBank's or the Debenture Guarantor's indebtedness for any class or series of the CompanyBank's or the Debenture Guarantor's capital stock, (Cc) the purchase of fractional interests in shares of the CompanyBank's or the Debenture Guarantor's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu PARI PASSU with or junior to such stock). ) if at such time (bi) there shall have occurred any event (A) of which the Bank or the Debenture Guarantor has actual knowledge that with the giving of notice or the lapse of time, or both, would constitute an Event of Default with respect to the Securities of such series, and (B) which the Bank or the Debenture Guarantor shall not have taken reasonable steps to cure, (ii) if the Securities of such series are held by an Issuer Trust, the Bank shall be in default with respect to its payment of any obligations under the Guarantee Agreement relating to the Capital Securities issued by such Issuer Trust, or (iii) the Bank shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company Bank also covenants with each Holder of Securities of a series issued to an Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such Issuer Trust, provided, PROVIDED that any permitted successor of the Company Bank hereunder may succeed to the CompanyBank's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust such Issuer Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred related Capital Securities in liquidation of the Trust such Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Issuer Trust to continue not to be taxable as a grantor trust and not as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of each series that if an Event of Default it shall have occurred not, and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not permit any Subsidiary of the Company to, (ia) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (iib) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities of such series or make any guarantee payments with respect to any guarantee by the Company of debt securities of any subsidiary of the Company if such guarantee ranks pari passu in all respects with or junior in interest to the Securities (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the any applicable Extension Period, (Bb) as a result of an any exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (Cc) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Planstockholder's rights plan, or the issuance of rights, stock or other property under any Rights Plan stockholder's rights plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). , if at such time (bi) there shall have occurred any event of which the Company has actual knowledge that (A) with the giving of notice or the lapse of time or both, would constitute an Event of Default with respect to the Securities of such series and (B) in respect of which the Company shall not have taken reasonable steps to cure, (ii) if the Securities of such series are held by a Union Planters Trust, the Company shall be in default with respect to its payment of any obligations under the Union Planters Guarantee relating to the Preferred Securities issued by such Union Planters Trust, or (iii) the Company shall have given written notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company also covenants with each Holder of Securities of a series issued to a Union Planters Trust (i) to hold, maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the such Union Planters Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust such Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the related Preferred Securities in liquidation of the Trust such Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Union Planters Trust to continue to be taxable remain classified as a grantor trust and not an association taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. A. Conduct of Business. During the period commencing on the date hereof and ending on the Closing Date: (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default Management Shareholders shall have occurred and be continuing or cause the Company shall have given notice to continue to conduct its business prudently and diligently in the ordinary course in substantially the same manner as heretofore conducted, and to use its best efforts to preserve intact the business organization of the Company, to keep available the services of its election present officers and employees, and to begin an Extension Period preserve the good will of those having business relationships with the Company; and (b) Except for the transactions expressly contemplated by this Agreement or with the specific prior written consent of Purchaser, the Management Shareholders shall not permit the Company to: (i) amend its character document or By-Laws; (ii) declare, set aside or pay any dividend or make any distribution on or with respect to shares of its capital stock; (iii) issue, grant, sell or pledge any shares of, or rights of any kind to acquire any shares of, the capital stock of the Company, or purchase, redeem or otherwise acquire any shares of such capital stock; (iv) acquire any assets or properties, other than in the ordinary course of business; (v) sell, lease, transfer, dispose of, encumber or mortgage any assets or properties, other than in the ordinary course of business; (vi) enter into any merger, consolidation, recapitalization or other business combination or reorganization. (vii) create, incur or assume any indebtedness for borrowed money except in the ordinary course of business, or prepay any part of the principal or interest of any existing indebtedness prior to the due date thereof; (viii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person or entity. (ix) make any loans, advances, or capital contributions to or investments in any person or entity; (x) incur, assume or pay any management fee, interest or any other similar charge. (xi) cause or permit any of the Company's current insurance (or reinsurance) policies to be canceled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, the Company obtains replacement policies from the same or comparable insurers providing coverage which is the same as or comparable to that provided under the canceled, terminated or lapsed policies. (xii) sell, transfer, license or otherwise dispose of any of its assets, other than in the ordinary course of business. (xiii) waive, release, grant or transfer any rights of value or modify or change in any material respect any existing license, lease, contract or other document, other than in the ordinary course of business; (xiv) make aggregate capital expenditures and commitments therefor, which when taken together with all other capital expenditures and commitments of the Company during such period, would exceed $50,000. (xv) make any change in any method of accounting or accounting practice, except as may be required by law and after written notice to Purchaser; (xvi) increase the compensation payable or to become payable by it to any of its employees except for normal periodic increases in the ordinary course of business that are made in accordance with the established compensation policies of the Company. (xvii) make any payment or provision with respect to any employee benefit or welfare plan, except in the ordinary course of the administration of such plans consistent with the established compensation policies of the Company. (xviii) grant any stock options, restricted stock grants or stock appreciation rights; (xix) enter into any employee agreement or other contract or arrangement with respect to the Securities and shall performance of personal services which is not have rescinded such notice, terminable without liability by the Company on thirty days notice (or such Extension Period, or any extension thereof, shall be continuing, it shall not less); (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (iixx) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than normal recurring payments of base salaries) or loan to, or enter into any written contract, lease or commitment with, any shareholder, officer or director of the Company; (Axxi) repurchasesadopt any new employee benefit plan or program or amend to increase materially the compensation or benefits payable under any of the employee welfare or benefit plans, redemptions or other acquisitions of shares of capital stock grant any severance or termination pay or benefit otherwise than pursuant to policies of the Company in connection with effect on the date of this Agreement; or (xxii) enter into any employment oral or written agreement, contract, benefit plan commitment, arrangement or other similar arrangement understanding with or for the benefit of respect to any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock)foregoing. (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock (for the avoidance of doubt, the term "capital stock" includes both common stock and preferred stock of the Company), (ii) vote in favor of or permit or otherwise allow any of its subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of such subsidiaries preferred stock (for the avoidance of doubt, whether such preferred stock is perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes. (c) The Guarantor also agrees to use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 31, 2004 and all future fiscal years, as a real estate investment trust under the Internal Revenue Code of 1986, as amended.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is the same stock Equity Interests as that on which the dividend is being paid or ranks pari passu with or junior to such stock)Equity Interests) or (F) any transaction consented to in writing by Holders of not less than a majority in principal amount of Outstanding Securities. (b) The From the date hereof until the end of the Initial Fixed Rate Period, the Company also covenants shall not declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with each Holder respect to, any of Securities the Company’s Equity Interests, other than (a) with the prior, express, written consent of the Holders of not less than a majority in principal amount of the Outstanding Securities, or (b) dividends or distributions which are reasonably necessary to maintain the REIT status of the Company for federal income and excise tax purposes and avoid imposition of federal income and excise tax on the Company with respect to such distributed taxable income or net capital gains; provided, that such distributions or dividends as described in clause (b) above shall (i) to hold, directly or indirectly, one hundred percent (100%) the extent paid to holders of the Common Securities Company’s common stock (A) not be in excess of $2,500,000 (in the aggregate in cash) and (B) be in the form of the Trust, provided, that any permitted successor of the Company hereunder may succeed Company’s common stock to the Company's ownership maximum extent permissible as stated by the Internal Revenue Service regulations, rulings, revenue procedures, notices, announcements, or other authoritative pronouncements at the time of such Common Securitiesdividend or distribution with only the balance payable in cash, and (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the extent paid to holders of the Preferred Securities Company’s preferred stock, be in liquidation an amount no greater than that required to be distributed to such holders to permit the distributions and dividends to holders of the Trust or (B) in connection with certain mergers, consolidations or amalgamations Company’s common stock permitted by clause (i) above. (c) Subject to Section 10.6(b), the Trust Agreement and (iii) Company also agrees to use its reasonable commercial effortsbest efforts to meet the requirements to qualify, consistent with effective for the terms fiscal year ending December 31, 2009 and provisions of the Trust Agreementall future fiscal years, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposesREIT under the Code.

Additional Covenants. (a) The Company covenants and agrees with each Holder holder of Securities of a series issued to an Aon Trust that it shall not, and it shall cause any Subsidiary not to, (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any shares of the Company's Capital Stock (which includes Common Stock and preferred stock), or (ii) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank on a parity with or junior to the Securities of such series or make any guarantee payments with respect to any Aon Guarantee or other guarantee by the Company of debt securities of any Subsidiary that by its terms ranks on a parity with or junior to the Securities of such series (other than (a) dividends or distributions in Common Stock; (b) any declaration of a dividend in connection with the implementation of a Rights Plan, the issuance of any Capital Stock of any class or series of preferred stock of the Company under any Rights Plan or the redemption or repurchase of any rights distributed pursuant to a Rights Plan; (c) payments under any Aon Guarantee relating to the Preferred Securities issued by the Aon Trust holding the Securities of such series; and (d) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Company's benefit plans for its directors, officers, employees, consultants or advisors) if at such time (i) there shall have occurred any event of which the Company has actual knowledge that (a) with the giving of notice or the lapse of time or both, would constitute an Event of Default hereunder and (b) in respect of which the Company shall not have occurred and taken reasonable steps to cure, (ii) the Company shall be continuing in default with respect to its payment of any obligations under the related Aon Guarantee or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities as provided in Section 2.10 and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) . The Company also covenants with each Holder holder of Securities of a series issued to an Aon Trust (i) to hold, maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the such Aon Trust; provided, providedhowever, that any permitted successor or assignee of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-wind up or liquidate the Trust other than such Aon Trust, except (Aa) in connection with a prepayment in full of the Securities or a distribution of the Securities of such series to the holders of the Preferred Securities in liquidation of the such Aon Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the relevant Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Aon Trust to continue to be taxable remain classified as a grantor trust and not an association taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock (for the avoidance of doubt, the term “capital stock” includes both common stock and preferred stock of the Company), (ii) vote in favor of or permit or otherwise allow any of its subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of such subsidiaries preferred stock (for the avoidance of doubt, whether such preferred stock is perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes. (c) The Company also agrees to use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 31, 2004 and all future fiscal years, as a real estate investment trust under the Internal Revenue Code of 1986, as amended.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock (for the avoidance of doubt, the term “capital stock” includes both common stock and preferred stock of the Company), (ii) vote in favor of or permit or otherwise allow any of its subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of such subsidiaries preferred stock (for the avoidance of doubt, whether such preferred stock is perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes. (c) The Company also agrees to use its reasonable efforts to meet the requirements to qualify, for the fiscal year ending December 31, 2004 and all future fiscal years, as a real estate investment trust under the Internal Revenue Code of 1986, as amended.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that so long as the Debentures are outstanding, if an Event of Default at any time (x) there shall have occurred and be continuing an Indenture Event of Default or any event of which the Company has actual knowledge that (A) with the giving of notice or the lapse of time or both, would constitute an Indenture Event of Default and (B) the Company shall not have taken reasonable steps to cure, (y) the Debentures are held by the Trust and the Company shall have given notice of its election to begin an Extension Period defaulted with respect to its payment of any obligations under the Securities Guarantee and shall not have rescinded such notice, or such Extension Period, or any extension thereof, default shall be continuing, it or (z) the Company has exercised its option pursuant to Section 3.12 to defer interest payments on the Debentures and the Deferral Period shall be continuing, then the Company shall not, and shall cause each of its Subsidiaries not to, (i) declare or pay any dividends or distributions on, or make a distribution with respect to, or redeem purchaseor purchase or acquire, acquire or make a liquidation payment with respect to, any shares of the Company's its capital stock, stock or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt other equity securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions any purchase or other acquisitions acquisition of shares of capital stock of the Company in connection with any employment contract, benefit plan Common Stock (or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or Common Stock equivalents) in connection with the issuance satisfaction by the Company or the Subsidiary of capital stock its obligations under any employee benefit plan or the satisfaction by the Company or the Subsidiary of its obligations pursuant to any contract or security requiring the Company or the Subsidiary to purchase Common Stock (or Common Stock equivalents), (B) any purchase of Common Stock (or Common Stock equivalents) from an officer or employee (or a Person performing similar functions) of the Company or any of its Subsidiaries upon termination of employment or retirement not pursuant to any obligation under any contract or security requiring the Company or the Subsidiary to purchase such Common Stock (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodCommon Stock equivalents), (BC) as a result of an a reclassification of the capital stock or other equity securities of the Company or any of its Subsidiaries or the exchange or conversion of any one class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) other equity securities for any another class or series of the Company's capital stock or of any class or series other equity securities of the Company's indebtedness for Company or any class or series of the Company's capital stockits Subsidiaries, (CD) the any dividend or distribution of Common Stock on Common Stock, (E) any purchase of fractional interests in shares capital stock or other equity securities of the Company's capital stock Company or any of its Subsidiaries pursuant to the conversion or exchange provisions of such capital stock or the other equity security being converted or exchanged, (DF) any declaration or payment of a dividend in connection with any Rights Plan, the issuance implementation of rights, stock or other property under any a Rights Plan or the redemption or repurchase of any rights distributed pursuant theretoto a Rights Plan, or (EG) any dividend or distribution by a Subsidiary of the Company to the Company or another Subsidiary of the Company, (H) any distribution by WestCoast Hospitality Limited Partnership ("WHLP") to any Person that is a partner in WHLP for federal income tax purposes so long as (x) at the time of the distribution, the Company has at least an 80% interest in the form income, gain, loss and deductions of stockWHLP, warrantsand (y) such distribution is required by the Amended and Restated Agreement of Limited Partnership of WHLP, options as in effect on the date of original issuance of the Debentures, and (I) any distribution by any other Subsidiary of the Company that is not wholly owned by the Company, so long as none of the holders of equity interests in such Subsidiary have any right to convert such equity securities into, or exchange such equity securities for, Common Stock of the Company; (ii) make any payment of principal of, or premium, if any, or interest on, or repay, repurchase or redeem, any debt securities issued by the Company that rank pari passu with or junior to the Debentures; or (iii) make any guarantee payments with respect to any guarantee (other rights where than the dividend stock or Guarantee) by the stock issuable upon exercise Company of any debt securities of any of its Subsidiaries, if such warrants, options or other rights is the same stock as that on which the dividend is being paid or guarantee ranks pari passu with or junior to such stock)the Debentures. (b) The Company also covenants with and agrees that, so long as the Debentures are outstanding, the Company shall not, and shall cause each Holder of Securities its Subsidiaries not to, incur indebtedness in excess of $100,000 to any Person who is, or who is an Affiliate of, an officer or director of the Company or a Person known by the Company to be the owner of (or a member of a syndicate or group that is treated as a "person" for purposes of Section 13(d) of the Exchange Act and the regulations thereunder and is the owner of) more than 5% of the outstanding shares of the Company's Common Stock except in each such case for (i) indebtedness incurred to hold, directly such a Person in connection with the transaction by which such Person or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor its Affiliate becomes an officer or director of the Company hereunder may succeed to or the owner of more than 5% of the outstanding shares of the Company's ownership of such Common Securities, Stock; (ii) as holder indebtedness that is incurred to such a Person by any Subsidiary of the Company formed to implement a joint venture with such Common Securities, Person and that is on terms that are not less favorable to voluntarily dissolve, wind-up or liquidate the Trust other Subsidiary than the terms that would be available in a comparable arm's length transaction; and (Aiii) indebtedness incurred in connection with a distribution transaction approved by a majority of the Securities independent (as defined in Sections 303.01(B)(2)(a) and (3) of the Listed Company Manual of the New York Stock Exchange, or any similar successor listing standard) and disinterested members of the Board of Directors. (c) The Company also covenants and agrees that, so long as the Debentures are outstanding, the Company shall not, and shall cause each of its Subsidiaries not to, engage in any Derivative Offering (as defined below) unless the debt issued to the holders financing entity in such offering is subordinate to or ranks pari passu with the Debentures. "Derivative Offering" means an offering in which (i) a financing entity structured as a trust, limited liability company, partnership or another form of entity is capitalized through the issuance of its preferred securities, and (ii) the financing entity lends the proceeds from the issuance of the Preferred Securities preferred securities to the Company and/or one or more of its Subsidiaries in liquidation of the Trust exchange for its or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposestheir debt securities.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if If at any time (i) there shall have occurred an Event of Default shall have occurred and be continuing or Default, (ii) the Company shall have given notice of its election to begin of an Extension Period with respect to the Securities as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, or (iii) while Securities are held by a ▇▇▇▇▇▇▇▇▇▇ Industries Trust, the Company shall be in default with respect to its payment of any obligation under the Guarantee, then the Company covenants and agrees with each Holder of Securities of any series that it shall not, and it shall not permit any Subsidiary of the Company to, (ia) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock (which includes common and preferred stock), or (iib) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company (including Securities other than the Securities of such series) that rank pari passu in all respects with or junior in interest to the Securities of such series or make any guarantee payments with respect to any guarantee by the Company of debt securities of any subsidiary of the Company if such guarantee ranks pari passu in all respects with or junior in interest to the Securities (other than (Ai) repurchases, redemptions dividends or other acquisitions of shares of capital stock of the Company distributions in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital which includes common and preferred stock), (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dii) any declaration of a dividend in connection with any Rights Planthe implementation of a shareholders' rights plan, or the issuance of rights, stock or other property under any Rights Plan such plan or the redemption or repurchase of any such rights pursuant thereto, (iii) payments under the ▇▇▇▇▇▇▇▇▇▇ Guarantee related to the Preferred Securities issued by the ▇▇▇▇▇▇▇▇▇▇ Industries Trust holding Securities of such series, and (iv) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Company's benefit plans for its directors, officers, consultants or employees), or (Ec) any dividend in redeem, purchase or acquire less than all of the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise Securities of such warrantsseries or any of the Preferred Securities if at such time (i) there shall have occurred an Event of Default with respect to the Securities of such series, options (ii) if the Securities of such series are held by a ▇▇▇▇▇▇▇▇▇▇ Industries Trust, the Company shall be in default with respect to its payment of any obligations under the ▇▇▇▇▇▇▇▇▇▇ Guarantee relating to the Preferred Securities issued by such ▇▇▇▇▇▇▇▇▇▇ Industries Trust, or other rights is (iii) the same stock Company shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as that on which the dividend is being paid provided herein and shall not have rescinded such notice, or ranks pari passu with such Extension Period, or junior to such stock)any extension thereof, shall be continuing. (b) The Company also covenants with each Holder of Securities of a series issued to a ▇▇▇▇▇▇▇▇▇▇ Industries Trust (i) to hold, maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the such ▇▇▇▇▇▇▇▇▇▇ Industries Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust other than such ▇▇▇▇▇▇▇▇▇▇ Industries Trust, except (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred Trust Securities in liquidation of the such ▇▇▇▇▇▇▇▇▇▇ Industries Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such ▇▇▇▇▇▇▇▇▇▇ Industries Trust to continue to be taxable remain classified as a grantor trust and not an association taxable as a corporation for United States Federal federal income tax purposes. (c) Except as set forth in this clause (c) of Section 10.7, the Company shall not, and shall not permit any Subsidiary to, directly or indirectly, issue, incur, assume, guarantee, become directly or indirectly liable, with respect to (including as a result of or in connection with an Acquisition), extend the maturity of, or otherwise become responsible for, contingently or otherwise (individually and collectively, "incur"), any Indebtedness (including without limitation Indebtedness in connection with Capitalized Lease Obligations or operating leases, whether incurred as part of a sale/leaseback transaction or otherwise) or any Disqualified Capital Stock from and after the Original Issue Date, unless: (1) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to, such incurrence of such Indebtedness or Disqualified Capital Stock; and (2) on the date of the incurrence of such Indebtedness or Disqualified Capital Stock (the "Incurrence Date"), on a pro forma basis giving effect to such incurrence (A) the Consolidated Interest Coverage Ratio of the Company for the Reference Period immediately preceding the Incurrence Date shall be greater than 2.15 to 1, and (B) the Consolidated Leverage Ratio of the Company as of the Incurrence Date shall be less than 3.25 to 1. For purposes of this Indenture, Indebtedness and Disqualified Stock incurred by any Person that is not the Company or a Subsidiary, which Indebtedness or Disqualified Stock is outstanding at the time such Person becomes a Subsidiary, or is merged or consolidated with the Company or a Subsidiary, shall (subject to the provisions set forth in the definitions of Consolidated Interest Coverage Ratio, Consolidated Leverage Ratio and the related definitions) be deemed to have been incurred or issued, as the case may be, at the time such Person becomes a Subsidiary, or is merged or consolidated with the Company or a Subsidiary. Notwithstanding the foregoing provisions of this clause (c) of Section 10.7: (i) The Company may incur Indebtedness evidenced by the Securities and other obligations under this Indenture, the Guarantee and the Expense Agreement; (ii) The Company may incur Indebtedness pursuant to the terms of the Bank Credit Agreements (including any guarantees thereof and letters of credit issued thereunder) or any amendment of or replacement for such Bank Credit Agreements; provided that the aggregate principal amount incurred and outstanding pursuant to this subclause (ii), including any Indebtedness in connection with any such refinancing of or replacement for such Bank Credit Agreements, shall not at any time exceed $65,000,000; (iii) The Company or any Subsidiary may incur Indebtedness to the Company or to a Subsidiary at least 80% of the outstanding voting stock of which is owned, directly or indirectly, by the Company (other than a ▇▇▇▇▇▇▇▇▇▇ Industries Trust); provided, that no Subsidiary shall become liable to any Person other than the Company or another Subsidiary at least 80% of the outstanding voting stock of which is owned, directly or indirectly, by the Company, in respect of Indebtedness permitted by this subclause (iii); (iv) The Company or any Subsidiary may incur Indebtedness consisting of Capitalized Lease Obligations, operating leases or other indebtedness the proceeds of which are applied toward the purchase of assets in the ordinary course of the Company's or such Subsidiary's business and with respect to which there is created a security interest in such assets in favor of the seller thereof; provided, that the aggregate principal amount incurred pursuant to this subclause (iv) shall not exceed $100,000 individually (for any one or series of related incurrences) or $1,000,000 for all such incurrences in any twelve-month period; (v) The Company or any Subsidiary may incur Indebtedness so long as such Indebtedness is issued in the ordinary course of business under interest rate swap obligations or is (consistent with past practices and in the ordinary course of business) in the form of performance bonds or letters of credit or reimbursement obligations in respect thereof, letter of credit obligations related to insurance with respect to claims by employees for work-related injuries, or bank overdrafts that are repaid within three Business Days; (vi) To the extent that the following shall constitute Indebtedness solely under clause (v) of the definition of Indebtedness, the Company or any Subsidiary may incur (A) Liens arising out of judgments or awards (other than any judgment that could constitute an Event of Default under this Indenture) in respect of which the Company or a Subsidiary shall in good faith be prosecuting an appeal or proceedings for review and in respect of which it shall have secured a subsisting stay of execution pending such appeal or proceedings for review, provided it shall have set aside on its books adequate reserves, in accordance with GAAP, with respect to such judgment or award, (B) Liens for taxes, assessments or governmental charges or levies that are not past due or are being contested in good faith by the Company or a Subsidiary through appropriate proceedings and for which disputed amounts adequate reserves have been established in accordance with GAAP, (C) Liens to secure payments of workmen's compensation and other payments, public liability, unemployment and other insurance, old-age pensions or other social security obligations, or the performance of bids, tenders, leases, contracts (other than contracts for the payment of money), public or statutory obligations, surety, stay or appeal bonds, or other similar obligations arising in the ordinary course of business, (D) mechanics', workmen's, materialman's, repairmen's, warehousemen's, vendors' or carriers' Liens, or other similar Liens arising in the ordinary course of business and securing sums which are not past due or are being contested in good faith by the Company or a Subsidiary through appropriate proceedings and for which disputed amounts adequate reserves have been established in accordance with GAAP, (E) zoning restrictions, easements, (including, without limitation, the easements granted under reciprocal easement agreements and utility agreements), rights of way, covenants, consents, reservations, encroachments, variations, licenses, restrictions on the use of real property or minor irregularities in title thereto, which do not materially impair the use of such property in the normal operation of the business of the Company or any Subsidiary or the value of such property for the purpose of such business, (F) unperfected Liens arising by operation of law under Article 2 of the UCC in favor of unpaid sellers or prepaying buyers of goods relating to amounts that are not past due in accordance with their respective terms of sale, and (G) rights arising as a matter of law or existing as of the Original Issue Date, in each case, of the lessor of any premises leased by the Company or any Subsidiary with respect to tangible property on the leased premises; and (vii) The Company or any Subsidiary may incur Indebtedness as a result of or in connection with an Acquisition, provided that (A) the amount of such Acquisition-related Indebtedness shall not exceed 100% of the total purchase price paid by the Company and its Subsidiaries in connection with such Acquisition, (B) the Consolidated Interest Coverage Ratio of the Company for the Reference Period immediately preceding the Incurrence Date shall be greater than 1.75 to 1, (C) the Consolidated Leverage Ratio of the Company as of the incurrence date shall be less than 3.75 to 1, and (D) in the event the Consolidated Interest Coverage Ratio of the Company for the Reference Period immediately preceding the six month anniversary of such Incurrence Date is less than 2.15 to 1 and/or the Consolidated Leverage Ratio of the Company as of such six month anniversary is greater than 3.25 to 1, such Indebtedness, together with all interest, premium (if any) and other charges in connection with such Indebtedness, shall be paid in full without the incurrence of additional refinancing or replacement Indebtedness. If no Event of Default has occurred and is continuing, the provisions of this Section 10.7(c) shall terminated and be of no further force and effect upon written notice by the Company to the Trustee in compliance with the last sentence of this paragraph (a "Fall Away Notice") given within 90 days after the end of any 12 consecutive fiscal quarter period of the Company during which (x) there has been no Extension Period and all payments on the Securities have been made timely and in full when due, (y) the Consolidated Interest Coverage Ratio of the Company for the combined four fiscal quarters immediately preceding each fiscal quarter end in such 12-quarter period was greater than 2.15 to 1, and (z) the Consolidated Leverage Ratio of the Company as of the end of each fiscal quarter in such 12-quarter period was less than 3.25 to 1. Any Fall Away Notice shall include copies of (1) resolutions of the Company's Board of Directors, certified by the Company's Secretary as having been duly adopted and being of full force and effect, finding, based upon the advice of the Company's independent auditors and such other advice and information as may be reasonably necessary for such a conclusion, that the conditions to the termination of this Section 10.7(c) set forth in the foregoing sentence have been satisfied, and (2) an Officer's Certificate and an Opinion of Counsel evidencing compliance with such conditions.

Additional Covenants. (a) The Company covenants and agrees with each Holder holder of Securities of a series issued to an Aon Trust that it shall not, and it shall cause any Subsidiary not to, (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any shares of the Company's Capital Stock (which includes Common Stock and preferred stock), or (ii) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank on a parity with or junior to the Securities of such series or make any guarantee payments with respect to any Aon Guarantee or other guarantee by the Company of debt securities of any Subsidiary that by its terms ranks on a parity with or junior to the Securities of such series (other than (a) dividends or distributions in Common Stock; (b) any declaration of a dividend in connection with the implementation of a Rights Plan, the issuance of any Capital Stock of any class or series of preferred stock of the Company under any Rights Plan or the redemption or repurchase of any rights distributed pursuant to a Rights Plan; (c) payments under any Aon Guarantee relating to the Preferred Securities issued by the Aon Trust holding the Securities of such series; and (d) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Company's benefit plans for its directors, officers, employees, consultants or advisors) if at such time (i) there shall have occurred any event of which the Company has actual knowledge that (a) with the giving of notice or the lapse of time or both, would constitute an Event of Default hereunder and (b) in respect of which the Company shall not have occurred and taken reasonable steps to cure, (ii) the Company shall be continuing in default with respect to its payment of any obligations under the related Aon Guarantee or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities as provided in Section 2.10 and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities Debentures that if an Event of Default it shall have occurred not, and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not permit any Subsidiary of the Company to, (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of of, premium, if any, or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities Debentures or (iii) make any guarantee payments with respect to any guarantee by the Company of debt securities of any subsidiary of the Company if such guarantee ranks pari passu with or junior in interest to the Debentures (other than (Aa) repurchases, redemptions dividends or other acquisitions of shares of capital stock of the Company distributions in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Db) any declaration of a dividend in connection with any Rights Plan, the issuance implementation of rights, stock or other property under any a Rights Plan or the redemption or repurchase of any rights distributed pursuant theretoto a Rights Plan, (c) payments under the Guarantee and (d) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Company's benefit plans for its directors, officers or employees, related to the issuance of Common Stock or rights under a dividend reinvestment and stock purchase plan, or related to the issuance of Common Stock (Eor securities convertible or exchangeable for Common Stock) as consideration in an acquisition transaction that was entered into prior to the commencement of such Extension Period) if at such time (x) there shall have occurred any dividend in event of which the form Company has actual knowledge that (A) with the giving of stock, warrants, options or other rights where the dividend stock notice or the stock issuable upon exercise lapse of such warrantstime or both, options or other rights is would constitute an Event of Default with respect to the same stock as that on Debentures and (B) in respect of which the dividend is being paid Company shall not have taken reasonable steps to cure, (y) if the Debentures are held by the Trust, the Company shall be in default with respect to its payment of any obligations under the Guarantee or ranks pari passu (z) the Company shall have given notice of its election to begin an Extension Period with respect to the Debentures as provided herein and shall not have rescinded such notice, or junior to such stock). (b) Extension Period or any extension thereof shall be continuing. The Company also covenants with each Holder of Securities covenants: (i) to hold, maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the TrustSecurities; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.hereunder

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an a reclassification of the Guarantor’s capital stock or the exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend or distribution in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend or distribution in the form of stock, warrants, options or other rights where the dividend or distribution stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend or distribution is being paid or ranks pari passu with or junior to such stock)) or dividends or distributions in shares of, or options warrants, rights to subscribe for or purchase shares of, common stock of the Guarantor. (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or Trust, (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement or (C) otherwise in accordance with Section 9.2 or 9.3 of the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of each series that if an Event of Default it shall have occurred not, and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not permit any Subsidiary of the Company to, (ix) declare or pay any dividends or distributions onon any shares of the Company’s capital stock, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital ’s preferred stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities security of the Company that ranks pari passu in all respects with or junior in interest to the Securities of such series (except for partial payments of interest with respect to such series of Securities) or (z) make any guarantee payments with respect to any guarantee by the Company of the debt securities of any Subsidiary of the Company that by their terms rank pari passu in all respects with or junior in interest to the Securities securities of such series (other than (Aa) repurchasesany repurchase, redemptions redemption or other acquisitions acquisition of shares of the Company’s capital stock of the Company in connection with (1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors directors, consultants or consultantsindependent contractors, in connection with (2) a dividend reinvestment or stockholder stock purchase plan plan, or in connection with (3) the issuance of the Company’s capital stock of the Company (stock, or securities convertible into or exercisable for such capital stock) , as consideration in an acquisition transaction entered into prior to the applicable Extension Event of Default, default or Deferral Period, as the case may be; (Bb) as a result of an exchange any exchange, redemption or conversion of any class or series of the Company's ’s capital stock (stock, or any the capital stock of a Subsidiary one of its subsidiaries, for any other class or series of the Company) for ’s capital stock, or any class or series of the Company's capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's its capital stock, ; (Cc) the any purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security securities being converted or exchanged, ; (Dd) any declaration of a dividend in connection with any Rights Planrights plan, or the issuance of rights, stock or other property under any Rights Plan rights plan, or the redemption or repurchase of rights pursuant thereto, ; (e) payments under any PrivateBancorp Guarantee executed for the benefit of the holders of the Trust Preferred Securities; or (Ef) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu equally with or junior to such stock). , if at such time (bi) there shall have occurred any event of which the Company has actual knowledge that (A) with the giving of notice or the lapse of time or both, would constitute an Event of Default with respect to the Securities of such series and (B) in respect of which the Company shall not have taken reasonable steps to cure, (ii) if the Securities of such series are held by a PrivateBancorp Trust, the Company shall be in default with respect to its payment of any obligations under the PrivateBancorp Guarantee relating to the Trust Preferred Securities issued by such PrivateBancorp Trust or (iii) the Company shall have given notice of its election to begin an Deferral Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Deferral Period, or any extension thereof, shall be continuing. The Company also covenants with each Holder of Securities of a series issued to a PrivateBancorp Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such PrivateBancorp Trust, provided, provided that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such the Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust a PrivateBancorp Trust, other than (Aa) in connection with a distribution of the Securities to the holders of the Trust Preferred Securities in liquidation of the Trust such PrivateBancorp Trust, or (Bb) in connection with certain mergers, consolidations consolidation or amalgamations permitted by the Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the PrivateBancorp Trust to continue to be taxable characterized as a grantor trust and not as a corporation for United States Federal income tax purposespurposes and to not be required to register as an “investment company” under the Investment Company Act.

Additional Covenants. (a) The Company Corporation covenants and agrees with each Holder of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the CompanyCorporation's capital stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company Corporation that rank pari passu in all respects with or junior in interest to the Securities of such series make any guarantee payments with respect to any guarantee by the Issuer of the debt securities of any subsidiary if such guarantee ranks pari passu in all respects with or junior in interest to the Securities of such series (other than (Aa) repurchases, redemptions or other acquisitions of shares of capital stock of the Company Corporation in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company Corporation (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bb) as a result of an exchange or conversion of any class or series of the CompanyCorporation's capital stock (or any capital stock of a Subsidiary of the CompanyCorporation) for any class or series of the CompanyCorporation's capital stock or of any class or series of the CompanyCorporation's indebtedness for any class or series of the CompanyCorporation's capital stock, (Cc) the purchase of fractional interests in shares of the CompanyCorporation's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (Ed) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). ) if at such time (bi) there shall have occurred any event (A) of which the Corporation has knowledge that with the giving of notice or the lapse of time, or both, would constitute an Event of Default with respect to the Securities of such series, and (B) which the Corporation shall not have taken reasonable steps to cure, (ii) if the Securities of such series are held by an Issuer Trust, the Corporation shall be in default with respect to its payment of any obligations under the Guarantee Agreement relating to the Capital Securities issued by such Issuer Trust, or (iii) the Corporation shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company Corporation also covenants with each Holder of Securities of a series issued to an Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such Issuer Trust, provided, provided that any permitted successor of the Company Corporation hereunder may succeed to the CompanyCorporation's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust such Issuer Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred related Capital Securities in liquidation of the Trust or (B) in connection with certain mergerssuch Issuer Trust, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.or

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any of such Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of return other than dividends or distributions on Equity Interests payable to the Company or any Subsidiary thereof (for the avoidance of doubt, whether such Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is the same stock Equity Interests as that on which the dividend is being paid or ranks pari passu with or junior to such stockEquity Interests). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder holder of Securities of a series issued to an Aon Trust that it shall not, and it shall cause any Subsidiary not to, (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any shares of the Company's Capital Stock (which includes Common Stock and preferred stock), or (ii) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank on a parity with or junior to the Securities of such series or make any guarantee payments with respect to any Aon Guarantee or other guarantee by the Company of debt securities of any Subsidiary that by its terms ranks on a parity with or junior to the Securities of such series (other than (a) dividends or distributions in Common Stock; (b) any declaration of a dividend in connection with the implementation of a Rights Plan, the issuance of any Capital Stock of any class or series of preferred stock of the Company under any Rights Plan or the redemption or repurchase of any rights distributed pursuant to a Rights Plan; (c) payments under any Aon Guarantee relating to the Preferred Securities issued by the Aon Trust holding the Securities of such series; and (d) purchases of Common Stock related to the issuance of Common Stock or rights under any of the Company's benefit plans for its directors, officers, employees, consultants or advisors) if at such time (i) there shall have occurred any event of which the Company has actual knowledge that (a) with the giving of notice or the lapse of time or both, would constitute an Event of Default hereunder and (b) in respect of which the Company shall not have occurred and taken reasonable steps to cure, (ii) the Company shall be continuing in default with respect to its payment of any obligations under the related Aon Guarantee or (iii) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities as provided in Section 2.10 and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) . The Company also covenants with each Holder holder of Securities of a series issued to an Aon Trust (i) to hold, maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the such Aon Trust; provided, providedhowever, that any permitted successor or assignee of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-wind up or liquidate the Trust other than such Aon Trust, except (Aa) in connection with a prepayment in full of the Securities or a distribution of the Securities of such series to the holders of the Preferred Securities in liquidation of the such Aon Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the relevant Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Aon Trust to continue to be taxable remain classified as a grantor trust and not an association taxable as a corporation for United States Federal U.S. federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stockshare capital, or (ii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of share capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock shareholder share purchase plan or in connection with the issuance of share capital stock of the Company (or securities convertible into or exercisable for such capital stockshare capital) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's share capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's share capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stockshare capital, (C) the purchase of fractional interests in shares of the Company's share capital stock pursuant to the conversion or exchange provisions of such share capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock shares or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stockshares, warrants, options or other rights where the bonus shares, dividend stock or the stock shares issuable upon exercise of such warrants, options or other rights is are the same stock shares as that on which the dividend is being paid or ranks pari passu with or junior to such stockshares). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants 6.1.1 During the period from the date the of Agreement and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or until Closing the Parties hereby agree that, the Company shall have given notice not (and Seller shall not cause or permit the Company to): (i) hire or fire any executive officers or senior management of the Company; (ii) amend, waive or otherwise change, in any respect, the Company’s certificate of incorporation or bylaws; (iii) issue, sell, assign, transfer, encumber, hypothecate or otherwise dispose of any equity interests of the Company or options, warrants or securities or rights to acquire or convert into equity interests of the Company; (iv) sell, assign, transfer, license, encumber, hypothecate or otherwise dispose of any material assets of the Company outside of the ordinary course of business; (v) pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such noticeshares, or such Extension Perioddirectly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities; (vi) acquire, including by merger, consolidation, acquisition of stock or assets, or any extension other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, shall be continuingor any material amount of assets outside the ordinary course of business; (vii) incur, it shall not (i) declare create, assume, prepay or pay otherwise become liable for any dividends indebtedness, make a loan or distributions onadvance to or investment in any third party, or redeem purchaseguarantee or endorse any Indebtedness, acquire liability or make a liquidation payment with respect toobligation of any person; (viii) terminate, waiver or assign any shares material rights under any material contracts of the Company's capital stock; (ix) waive, release, assign, settle or compromise any Action (iiincluding any Action, relating to this Agreement or the transactions contemplated hereby); (x) make any payment of principal of enter into, amend, waive or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities terminate (other than terminations in accordance with their terms) any contract or transaction with Buyer or its affiliates (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of than the Company) for or any class stockholder, officer, director, employee or series independent contractor of any of the Company's capital stock foregoing or any of their respective immediately family members; or (xi) agree, authorize or commit to do any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (C) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock)foregoing actions. (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees Guarantor covenant and agree with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s or the Guarantor’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its respective Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of any such Subsidiary’s preferred stock or other Equity Interests entitling the holders thereof to a stated rate of return, other than dividends or distributions on Equity Interests payable to the Guarantor, the Company or any Subsidiary thereof (for the avoidance of doubt, whether such preferred stock or other Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company or Guarantor that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company or Guarantor in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock Equity Interests of the Company or Guarantor (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s or the Guarantor’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the CompanyCompany or Guarantor) for any class or series of the Company's capital stock ’s or the Guarantor’s Equity Interests or of any class or series of the Company's ’s or the Guarantor’s indebtedness for any class or series of the Company's capital stock’s or the Guarantor’s Equity Interests, (C) the purchase of fractional interests in shares of the Company's capital stock ’s or the Guarantor’s Equity Interests pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interest or the stock Equity Interest issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks rank pari passu with or junior to such stockEquity Interests). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes. (c) The Guarantor agrees that the Guarantor will use its commercially reasonable efforts to meet the requirements to qualify as a REIT under Sections 856 through 860 of the Code, effective for the taxable year ending December 31, 2005 and unless and until the Board of Directors of the Guarantor determines that it is in the best interests of the Guarantor not to be organized as a REIT, the Guarantor will be organized in conformity with the requirements for qualification as a REIT under the Code.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities Senior Notes that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares Equity Interests of the Company's capital stock, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any preferred Equity Interests of such Subsidiaries or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities Senior Notes (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock Equity Interests purchase plan or in connection with the issuance of capital stock of Equity Interests in the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange exchange, conversion reclassification or conversion combination of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock of Equity Interests in a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares the Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interest or the stock Equity Interest issuable upon exercise of such warrants, options or other rights is the same stock Equity Interest as that on which the dividend is being paid or ranks pari passu with or junior to such stockEquity Interest). (b) The Company also covenants with shall notify in writing, at least ten (10) Business Days prior to the occurrence thereof, the Trustee and each Holder of Securities the occurrence of a Change of Control (ithe “Change of Control Notice”). If the Company and the Trustee shall have received, within thirty (30) days after the date the Change of Control occurs, and after timely delivering to holdthe Holders the Change of Control Notice, directly written notice from any Holder of its election to cause the Defeasance or indirectlyredemption, one hundred percent as applicable, of the Senior Notes as provided in this Section 10.5(b) (100the “Change of Control Election”), then the Company shall cause Article XII to be applied to the Electing Senior Notes. Failure by the Company to timely deliver the Change of Control Notice shall not adversely affect the rights of the Holders to make a Change of Control Election, and the period for such Change of Control Election shall be tolled by the number of days such Change of Control Notice is delayed. (c) The Company also agrees to use its reasonable best efforts to meet the requirements to qualify, effective for the fiscal year ending December 31, 2005, and all future fiscal years, as a real estate investment trust under the Code. (d) The Company hereby covenants and agrees that at no time, without the prior written consent of Holders of a majority in aggregate principal amount of the Outstanding Senior Notes, will the Company issue any Debt (including all junior subordinated notes, trust preferred securities or other similarly structured subordinate debt) which ranks subordinate to the Senior Notes (the “Subordinate Debt”) if the result thereof is that the sum of (A) the principal amount of the Subordinate Debt proposed to be issued and (B) the outstanding principal amount of all Subordinated Debt exceeds twenty-five (25%) of the Common Securities sum of the Trust, provided, that any permitted successor (i) Consolidated Tangible Net Worth of the Company hereunder may succeed to determined as of the end of the Company's ownership of such Common Securities’s most recent fiscal quarter, (ii) as holder the outstanding principal amount of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement all Subordinate Debt and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions principal amount of the Trust Agreement, to cause the Trust to continue Subordinated Debt proposed to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposesissued.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities Senior Notes that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares Equity Interests of the Company's capital stock, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any preferred Equity Interests of such Subsidiaries or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities Debt of the Company that rank pari passu in all respects with or junior in interest to the Securities other than Permitted Debt (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock Equity Interests purchase plan or in connection with the issuance of capital stock of Equity Interests in the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange exchange, conversion reclassification or conversion combination of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock of Equity Interests in a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares the Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interest or the stock Equity Interest issuable upon exercise of such warrants, options or other rights is the same stock Equity Interest as that on which the dividend is being paid or ranks pari passu with or junior to such stockEquity Interest). (b) The Company also covenants with shall notify in writing, within five (5) Business Days of the occurrence thereof, the Trustee and each Holder of Securities Senior Notes of the occurrence of a Change-of-Control (the “Change-of-Control Notice”). Within thirty (30) days of the occurrence of a Change-of-Control, the Depositor shall initiate a ratings affirmation process with the Ratings Agencies to determine if a Ratings Downgrade has occurred as a result of such Change-of- Control. Within five (5) Business Days of the completions of such ratings affirmation process, the Company shall notify in writing the Trustee and each holder of Senior Notes of the occurrence of a Change-of-Control Event (the “Change-of-Control Event Notice”). If the Company shall have received, within thirty (30) days from the Holders of Senior Notes’ receipt of the Change-of-Control Event Notice, written notice from any Holder of Senior Notes of such Holder’s election to cause the Defeasance or redemption, as applicable, of the Senior Notes as provided in this Section 10.5(b) (the “Change-of-Control Election”), then the Company shall (i) if such Change-of-Control Election is received on or prior to holdJune 30, directly 2011, cause Article XIII to be applied to the Outstanding Senior Notes or indirectly(ii) if such Change-of-Control Election is received after June 30, one hundred percent 2011, redeem the Senior Notes pursuant to Section 11.1(b). (100%c) The Company hereby covenants and agrees that the Company shall maintain, (i) as of the Common Securities end of each fiscal quarter during 2007, a Consolidated Tangible Net Worth (as reported in the Company’s balance sheet contained in the most recent periodic report filed with the Commission) in excess of $110,000,000 and (ii) as of the Trustend of each fiscal quarter thereafter commencing with the Company’s first fiscal quarter during 2008, provideda Consolidated Tangible Net Worth (as reported in the Company’s balance sheet contained in the most recent periodic report filed with the Commission) in excess of $120,000,000. (d) The Company will not permit the Leverage Ratio, that any permitted successor as of the end of each fiscal quarter, to be greater than 3.00 to 1.00. (e) The Company hereunder may succeed will not permit the Fixed Charge Coverage Ratio, (i) as of the end of each fiscal quarter ending March 31, 2007 and June 30, 2007, to be less than 1.0 to 1.00 in each case for such quarter or, collectively, such quarter together with the Company's ownership of such Common Securitiespreceding three (3) quarters, (ii) as holder of the end of the fiscal quarter ending September 30, 2007 to be less than 1.50 to 1.00 for such Common Securitiesquarter or, collectively, such quarter together with the preceding three (3) quarters, (iii) as of the end of December 31, 2007 to be less than 2.0 to 1.00 for such quarter or, collectively, such quarter together with the preceding three (3) quarters and (iv) each fiscal quarter thereafter, to be less than 2.00 to 1.00 for, collectively, such quarter together with the preceding three (3) quarters. (f) On each of March 30, 2007, June 30, 2007 and either, at the Company’s option, September 30, 2007 or December 30, 2007, the Company shall deposit into the Interest Reserve Account an amount equal to the amount of interest paid with respect to the Senior Notes on such Interest Payment Date pursuant to Section 3.1 (a). The amounts on deposit in the Interest Reserve Account shall not be released to voluntarily dissolvethe Company until such time as the Company shall (i) have maintained a Fixed Charge Coverage Ratio of not less than 2.0 to 1.0 as of the four (4) immediately preceding fiscal quarters in each case for, wind-up or liquidate collectively, such quarter together with the Trust preceding three (3) quarters and (ii) be in compliance with all other covenants contained herein. (g) Until such time as the Company shall (x) have maintained a Fixed Charge Coverage Ratio of not less than 2.0 to 1.0 as of the two (A2) immediately preceding fiscal quarters, in each case, for, collectively, such quarter together with the preceding three (3) quarters and (y) be in compliance with all other covenants contained herein, the Company shall not repurchase any Equity Interests of the Company unless in connection with a distribution such repurchase of Equity Interests (an “Acceptable Repurchase”) (i) the Securities Company will redeem pursuant to Section 11.1 (d) an amount of Senior Notes having an outstanding principal amount equal to the holders purchase price of such Equity Interests to be repurchased up to a maximum of $10,000,000, (ii) the Preferred Securities redemption and defeasance of such Senior Notes shall be in liquidation increments of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement $1,000,000 and (iii) the redemption and defeasance, if any, of such Senior Notes shall be consummated and all payments or deposits made with respect thereto shall be made prior to use its reasonable commercial efforts, consistent with the terms and provisions consummation of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposesrepurchase of any Equity Interests.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of each series that if an Event of Default it shall have occurred not, and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not permit any Subsidiary of the Company to, (i) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu with or junior in all respects interest to the Securities of such series or (iii) make any guarantee payments with respect to any guarantee by the Company of debt securities of any subsidiary of the Company if such guarantee ranks pari passu with or junior in interest to the Securities (other than (Aa) repurchases, redemptions or other acquisitions of shares of the Company's capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of the Company's capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Event of Default, default or Extension Period, as the case may be, (Bb) as a result of an exchange or conversion of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (Cc) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, (e) payments under the Guarantee with respect to the Securities of such series, or (Ef) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). ) if at such time (bx) there shall have occurred any event of which the Company has actual knowledge that (A) with the giving of notice or the lapse of time or both, would constitute an Event of Default with respect to the Securities of such series and (B) in respect of which the Company shall not have taken reasonable steps to cure, (y) if the Securities of such series are held by a Trust, the Company shall be in default with respect to its payment of any obligations under the Guarantee relating to the Preferred Securities issued by such Trust or (z) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing. The Company also covenants with each Holder of Securities of a series issued to a Trust (i) to hold, maintain directly or indirectly, one hundred percent (100%) % ownership of the Common Securities of the such Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of cause such Common Securities, trust to remain a Delaware business trust (to the fullest extent permitted by law) and not to voluntarily dissolveterminate, wind-up or liquidate the Trust other than such Trust, except (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred Trust Securities of such Trust in liquidation of the such Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, take no action that would be reasonably likely to cause the such Trust to continue to be taxable classified as other than a grantor trust and not as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares Equity Interests of the Company's capital stock, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any preferred Equity Interests of such Subsidiaries or other Equity Interests entitling the holders thereof to a stated rate of return (for the avoidance of doubt, whether such preferred Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock Equity Interests purchase plan or in connection with the issuance of capital stock of Equity Interests in the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange exchange, conversion reclassification or conversion combination of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock of Equity Interests in a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares the Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interest or the stock Equity Interest issuable upon exercise of such warrants, options or other rights is the same stock Equity Interest as that on which the dividend is being paid or ranks pari passu with or junior to such stockEquity Interest). (b) The Company also covenants with shall notify in writing, within five (5) Business Days of the occurrence thereof, the Trustee and each Holder of Securities of the occurrence of a Change-in-Control (the “Change-in-Control Notice”). Within thirty (30) days of the occurrence of a Change-in-Control, the Depositor shall initiate a ratings affirmation process with the Ratings Agencies to determine if a Ratings Downgrade has occurred as a result of such Change-in-Control. Within five (5) Business Days of the completions of such ratings affirmation process, the Company shall notify in writing the Trustee and each holder of Securities of the occurrence of a Change-in-Control Event (the “Change-in-Control Event Notice”). If the Company shall have received, within thirty (30) days from the Holders of Securities’ receipt of the Change-in-Control Event Notice, written notice from any Holder of Securities of such Holder’s election to cause the Defeasance or redemption, as applicable, of the Securities as provided in this Section 10.5(b) (the “Change-in-Control Election”), then the Company shall (i) if such Change-in-Control Election is received on or prior to holdJune 30, directly or indirectly2011, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed cause Article XIII to be applied to the Company's ownership of such Common Securities, Outstanding Securities or (ii) if such Change-in-Control Election is received after June 30,2011, redeem the Securities pursuant to Section ll.l(b). (c) The Company hereby covenants and agrees that the Company shall maintain, as holder of such Common Securitiesthe end of each fiscal quarter, not to voluntarily dissolve, wind-up or liquidate a Consolidated Tangible Net Worth (as reported in the Trust other than (ACompany’s balance sheet contained in the most recent periodic report filed with the Commission) in connection with a distribution excess of $120,000,000. (d) The Company will not permit the Leverage Ratio, as of the Securities end of each fiscal quarter, to be greater than 3.00 to 1.00. (e) The Company will not permit the holders Fixed Charge Coverage Ratio, as of the Preferred Securities in liquidation end of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreementeach fiscal quarter, to cause the Trust be less than 2.00 to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes1.00.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's capital stock’s Equity Interests, (ii) vote in favor of or permit or otherwise allow any of its Subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any of such Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of return other than dividends or distributions on Equity Interests issued by any Subsidiary solely payable to the Company or any Subsidiary thereof (for the avoidance of doubt, whether such Equity Interests are perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock Equity Interests of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase or similar plan with respect to any Equity Interests or in connection with the issuance of capital stock Equity Interests of the Company (or securities convertible into or exercisable for such capital stockEquity Interests) as consideration in an acquisition transaction entered into prior to the applicable Event of Default or Extension Period, (B) as a result of an exchange or conversion of any class or series of the Company's capital stock ’s Equity Interests (or any capital stock Equity Interests of a Subsidiary of the Company) for any class or series of the Company's capital stock ’s Equity Interests or of any class or series of the Company's ’s indebtedness for any class or series of the Company's capital stock’s Equity Interests, (C) the purchase of fractional interests in shares Equity Interests of the Company's capital stock Company pursuant to the conversion or exchange provisions of such capital stock Equity Interests or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock Equity Interests or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, or (E) any dividend in the form of stockEquity Interests, warrants, options or other rights where the dividend stock Equity Interests or the stock Equity Interests issuable upon exercise of such warrants, options or other rights is are the same stock Equity Interests as that those on which the dividend is being paid or ranks rank pari passu with or junior to such stockEquity Interests). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities of each series that if an Event of Default it shall have occurred not, and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not permit any Subsidiary of the Company to, (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire acquire, or make a liquidation payment with respect to, any shares of the Company's capital stock, or (ii) make any payment of principal of or any principal, interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior to this Securities or (iii) make any guarantee payments with respect to any guarantee by the Company of the debt securities of any Subsidiary of the Company if such guarantee ranks pari passu with or junior in interest to the Securities this Security (other than (Aa) repurchasesdividends or distributions in Common Stock or warrants, redemptions options or other acquisitions rights where Common Stock is issuable upon the exercise thereof, (b) payments under the Guarantee with respect to this Security, (c) any declaration of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the implementation of a Rights Plan, or the issuance of capital stock under any such Rights Plan in the future, or the redemption or repurchase of the Company (or securities convertible into or exercisable for any such capital stock) as consideration in an acquisition transaction entered into prior rights pursuant to the applicable Extension Perioda Rights Plan, (Bd) as a result of an exchange or conversion (x) of any class or series of the Company's capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's capital stock or (y) of any class or series of the Company's indebtedness for any class or series of the Company's capital stock, (Ce) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Df) any declaration purchases of a dividend in connection with any Rights Plan, Common Stock related to the issuance of rights, stock Common Stock or other property rights under any Rights Plan employment agreement, benefit plan or similar agreement for the directors, officers, employees and consultants of the Company and its subsidiaries, related to the issuance of Common Stock or rights under a dividend reinvestment and stock purchase plan or related to the issuance of Common Stock (or securities convertible into or exchangeable for Common Stock) as consideration in an acquisition transaction that was entered into prior to the commencement of such Extension Period) if at such time (x) there shall have occurred any event of which the Company has actual knowledge that (A) with the giving of notice or the redemption lapse of time or repurchase both, would constitute an Event of rights pursuant theretoDefault with respect to the Securities of such series and (B) in respect of which the Company shall not have taken reasonable steps to cure, (y) if the Securities of such series are held by a Trust, the Company shall be in default with respect to its payment of any obligations under the Guarantee relating to the Preferred Securities issued by such Trust or (z) the Company shall have given notice of its election to begin an Extension Period with respect to the Securities of such series as provided herein and shall not have rescinded such notice, or (E) such Extension Period, or any dividend in the form of stockextension thereof, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) shall be continuing. The Company also covenants with each Holder of Securities of a series issued to a Trust (i) to hold, maintain directly or indirectly, one hundred percent (indirectly 100%) % ownership of the Common Securities of the such Trust; provided, providedhowever, that any permitted successor of the Company hereunder may succeed to the Company's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust other than such Trust, except (Aa) in connection with a distribution of the Securities of such series to the holders of the Preferred Trust Securities of such Trust in liquidation of the such Trust or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement related Declaration and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreementsuch Declaration, to cause the such Trust to continue to be taxable remain classified as a grantor trust and not an association taxable as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company covenants and agrees with each Holder of Securities that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (i) declare or pay any dividends or distributions on, or redeem redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company's ’s capital stock (for the avoidance of doubt, the term “capital stock” includes both common stock and preferred stock of the Company), (ii) vote in favor of or permit or otherwise allow any of its subsidiaries to declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to or otherwise retire, any shares of such subsidiaries preferred stock (for the avoidance of doubt, whether such preferred stock is perpetual or otherwise), or (iiiii) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank pari passu in all respects with or junior in interest to the Securities (other than (A) repurchases, redemptions or other acquisitions of shares of capital stock of the Company in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension PeriodEvent of Default, (B) as a result of an exchange or conversion of any class or series of the Company's ’s capital stock (or any capital stock of a Subsidiary of the Company) for any class or series of the Company's ’s capital stock or of any class or series of the Company's ’s indebtedness for any class or series of the Company's ’s capital stock, (C) the purchase of fractional interests in shares of the Company's ’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (D) any declaration of a dividend in connection with any Rights Plan, the issuance of rights, stock or other property under any Rights Plan or the redemption or repurchase of rights pursuant thereto, thereto or (E) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) The Company also covenants with each Holder of Securities (i) to hold, directly or indirectly, one hundred percent (100%) of the Common Securities of the Trust, provided, that any permitted successor of the Company hereunder may succeed to the Company's ’s ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolve, wind-up or liquidate the Trust other than (A) in connection with a distribution of the Securities to the holders of the Preferred Securities in liquidation of the Trust or (B) in connection with certain mergers, consolidations or amalgamations permitted by the Trust Agreement and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the Trust Agreement, to cause the Trust to continue to be taxable as a grantor trust and not as a corporation for United States Federal federal income tax purposes.

Additional Covenants. (a) The Company Corporation covenants and agrees with each Holder of Securities of each series that if an Event of Default shall have occurred and be continuing or the Company shall have given notice of its election to begin an during any Extension Period with respect to the Securities and shall not have rescinded such notice, or such Extension Period, or any extension thereof, shall be continuing, it shall not (ix) declare or pay any dividends or distributions on, or redeem purchase, acquire or make a liquidation payment with respect to, any shares of the CompanyCorporation's capital stock, or (iiy) make any payment of principal of or any interest or premium premium, if any, on or repay, repurchase or redeem any debt securities of the Company Corporation that rank pari passu in all respects with or junior in interest to the Securities of such series (other than for each of (Ai) and (ii) (a) repurchases, redemptions or other acquisitions of shares of capital stock of the Company Corporation in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock of the Company Corporation (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition transaction entered into prior to the applicable Extension Period, (Bb) repurchases, redemptions or other acquisitions as a result of an exchange or conversion of any class or series of the CompanyCorporation's capital stock (or any capital stock of a Subsidiary of the CompanyCorporation) for any class or series of the CompanyCorporation's capital stock or of any class or series of the CompanyCorporation's indebtedness for any class or series of the CompanyCorporation's capital stock, (Cc) the purchase of fractional interests in shares of the CompanyCorporation's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (Dd) any declaration of a dividend in connection with any Rights Plan, or the issuance of rights, stock or other property under any 4976750.5 111402 0955C 02048574 -61- Rights Plan Plan, or the redemption or repurchase of rights pursuant thereto, or (Ee) any dividend in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks pari passu with or junior to such stock). (b) . The Company Corporation also covenants with each Holder of Securities of a series issued to an Issuer Trust (i) to hold, directly or indirectly, one hundred percent (100%) % of the Common Securities of the such Issuer Trust, provided, provided that any permitted successor of the Company Corporation hereunder may succeed to the CompanyCorporation's ownership of such Common Securities, (ii) as holder of such Common Securities, not to voluntarily dissolveterminate, wind-up or liquidate the Trust such Issuer Trust, other than (Aa) in connection with a distribution of the Securities of such series to the holders of the related Preferred Securities in liquidation of the Trust such Issuer Trust, or (Bb) in connection with certain mergers, consolidations or amalgamations permitted by the related Trust Agreement Agreement, and (iii) to use its reasonable commercial efforts, consistent with the terms and provisions of the such Trust Agreement, to cause the such Issuer Trust to continue not to be taxable as a grantor trust and not as a corporation for United States Federal federal income tax purposes.