Common use of Consolidated EBITDA Clause in Contracts

Consolidated EBITDA. In relation to the Borrower, the Trust and their respective Subsidiaries for any applicable period, an amount equal to, without double-counting, the net income or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment of rent to straight-line rent) for such period, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums (including, without limitation, any prepayment or make-whole premiums payable in connection with the prepayment of the Senior Notes), plus (x) the following to the extent deducted in computing such net income or loss for such period: (i) Consolidated Total Interest Expense for such period, (ii) losses attributable to the sale or other disposition of assets or debt restructurings in such period, (iii) real estate depreciation and amortization for such period, (iv) acquisition costs related to the acquisition of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do not represent a recurring cash item in such period or in any future period and (v) other non-cash charges for such period; and minus (y) all gains attributable to the sale or other disposition of assets in such period. The Borrower’s, the Trust’s, and any Subsidiary’s Pro Rata Share of the items comprising Consolidated EBITDA of any Partially-Owned Entity will be included in Consolidated EBITDA, calculated in a manner consistent with the above described treatment for the Borrower, the Trust and their respective Subsidiaries”.

Consolidated EBITDA. In relation to the Borrower, the Trust and their respective Subsidiaries for any applicable period, an amount equal to, without double-counting, the net income or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment of rent to for so-called “straight-line rentrent accounting”) for such period, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums (including, without limitation, any prepayment or make-whole premiums payable in connection with the prepayment of the Senior Notes), plus (x) the following to the extent deducted in computing such net income or loss for such period: (i) Consolidated Total Interest Expense for such period, (ii) losses attributable to the sale or other disposition of assets or debt restructurings in such period, (iii) real estate depreciation and amortization for such period, (iv) acquisition costs related to the acquisition of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do not represent a recurring cash item in such period or in any future period and (v) other non-cash charges for such period; and minus (y) all gains attributable to the sale or other disposition of assets or debt restructurings in such period. The , in each case adjusted to include the Borrower’s, the Trust’s, and ’s or any Subsidiary’s Pro Rata Share pro rata share of EBITDA (and the items comprising Consolidated EBITDA of EBITDA) from any Partially-Owned Entity will be included in Consolidated EBITDAsuch period, calculated based on its percentage ownership interest in a manner consistent with the above described treatment for such Partially-Owned Entity (or such other amount to which the Borrower, the Trust and their respective Subsidiaries”or such Subsidiary is entitled or for which the Borrower, the Trust or such Subsidiary is obligated based on an arm’s length agreement).

Consolidated EBITDA. In relation to the Borrower, the Trust and their respective Subsidiaries for For any applicable period, an amount equal to, for the REIT and its Subsidiaries on a consolidated basis (and without double-counting), the net income or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment of rent to straight-line rent) consolidated Net Income for such period, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums (including, without limitation, any prepayment or make-whole premiums payable in connection with the prepayment of the Senior Notes), plus adjusted by (x) the following adding thereto (i) to the extent actually deducted in computing such net determining said consolidated Net Income, Consolidated Interest Expense, minority interest and provision for income or loss taxes for such period: period (i) excluding, however, Consolidated Total Interest Expense and income taxes attributable to non-Wholly-Owned Subsidiaries and Unconsolidated Affiliates of the REIT and any of its Subsidiaries), and (ii) the amount of all amortization of intangibles and depreciation that were deducted determining consolidated Net Income for such period, (ii) losses attributable to the sale or other disposition of assets or debt restructurings in such period, and (iii) real estate depreciation any non-recurring non-cash charges in such period to the extent that (A) such non-cash charges do not give rise to a liability that would be required to be reflected on the consolidated balance sheet of the REIT (and amortization so long as no cash payments or cash expenses will be associated therewith (whether in the current period or for any future period)) and (B) the same were deducted in determining consolidated Net Income for such period, and (ivy) acquisition costs related subtracting therefrom, to the acquisition extent included in determining consolidated Net Income for such period, the amount of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141non-R which do not represent a recurring cash item in such period or in any future period and (v) other non-cash charges for gains during such period; and minus provided that Consolidated EBITDA shall be determined without giving effect to any extraordinary gains or losses (y) all gains including any taxes attributable to the sale any such extraordinary gains or other disposition losses) or gains or losses (including any taxes attributable to such gains or losses) from sales of assets other than from sales of inventory (excluding real property) in such periodthe ordinary course of business. The Borrower’s, the Trust’s, and any Subsidiary’s Pro Rata Share of the items comprising Consolidated EBITDA shall be adjusted to include only the REIT’s or its Subsidiaries’ Equity Percentage of Consolidated EBITDA from any Partiallynon-Wholly-Owned Entity will be included in Consolidated EBITDA, calculated in a manner consistent with the above described treatment for the Borrower, the Trust Subsidiary and their respective Subsidiaries”Unconsolidated Affiliate.

Consolidated EBITDA. In relation 1 If during the relevant period any Borrower or any Subsidiary shall have made any Permitted Acquisition, Consolidated EBITDA for such period shall be calculated after giving pro forma effect to such Permitted Acquisition as if such Permitted Acquisition occurred on the Borrowerfirst day of such period. Credit Agreement B-3 1. Consolidated Net Income, provided that there shall be excluded from such Consolidated Net Income the Trust following: (i) all gains and all losses realized by Borrowers and their respective Subsidiaries for any applicable period, an amount equal to, without double-counting, upon the net income sale or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment of rent to straight-line rent) for such period, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums other disposition (including, without limitation, pursuant to sale and leaseback transactions) of property or assets that are not sold or otherwise disposed of in the ordinary course of business, or pursuant to the sale of any prepayment capital stock held by any Borrower or makeany Subsidiary; and (ii) all items of gain or income that are properly classified as extraordinary in accordance with GAAP or are unusual or non-whole premiums recurring $ 2. Consolidated Interest Charges: The sum of: (a) all interest, premium payments, fees, charges and related expenses payable by Borrowers and their Subsidiaries in connection with borrowed money (including capitalized interest) or in connection with the prepayment deferred purchase price of the Senior Notes)assets, plus (x) the following in each case to the extent deducted treated as interest in computing accordance with GAAP, $ (b) the portion of rent payable by Borrowers and their Subsidiaries with respect to such net income period under Capital Leases that is treated as interest in accordance with GAAP, and $ (c) the portion of rent under any Synthetic Lease Obligation that would be treated as interest in accordance with GAAP if the Synthetic Lease Obligation were treated as a Capital Lease under GAAP. $ 3. The amount of Taxes, based on or loss measured by income, used or included in the determination of such Consolidated Net Income for such period: (i) Consolidated Total Interest Expense for such period, (ii) losses attributable to the sale or other disposition $ 4. The amount of assets or debt restructurings in such period, (iii) real estate depreciation and amortization for expense deducted in determining such periodConsolidated Net Income, (iv) acquisition costs related to the acquisition including any impairment of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to intangible/goodwill as defined under FAS 141-R which do not represent a recurring cash item in such period or in any future period 142 and (v) other non-cash charges for such period; and minus (y) all gains attributable to the sale or other disposition of assets in such period. The Borrower’s, the Trust’s, and any Subsidiary’s Pro Rata Share of the items comprising Consolidated EBITDA of any Partially-Owned Entity will be included in Consolidated EBITDA, calculated in a manner consistent with the above described treatment for the Borrower, the Trust and their respective Subsidiaries”.FAS 144: $

Consolidated EBITDA. In relation to the Borrower, the Trust and their respective Subsidiaries for any applicable period, an amount equal to, without double-counting, the net income or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment of rent to for so-called “straight-line rentrent accounting”) for such period, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums (including, without limitation, any prepayment or make-whole premiums payable in connection with the prepayment of the Senior Notes), plus (x) the following to the extent deducted in computing such net income or loss for such period: (i) Consolidated Total Interest Expense for such period, (ii) losses attributable to the sale or other disposition of assets or debt restructurings in such period, (iii) real estate depreciation and amortization for such period, (iv) acquisition costs related to the acquisition of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do not represent a recurring cash item in such period or in any future period period, and (v) other non-cash charges for such period; and minus (y) all gains attributable to the sale or other disposition of assets or debt restructurings in such period. The , in each case adjusted to include the Borrower’s, the Trust’s, and ’s or any Subsidiary’s Pro Rata Share pro rata share of EBITDA (and the items comprising Consolidated EBITDA of EBITDA) from any Partially-Owned Entity will be included in Consolidated EBITDAsuch period, calculated based on its percentage ownership interest in a manner consistent with the above described treatment for such Partially-Owned Entity (or such other amount to which the Borrower, the Trust and their respective Subsidiaries”or such Subsidiary is entitled or for which the Borrower, the Trust or such Subsidiary is obligated based on an arm’s length agreement).

Consolidated EBITDA. In relation (1) Consolidated Net Income for the Reference Period ending on the date of determination $ (2) Additions to the Borrower, the Trust and their respective Subsidiaries for any applicable period, an amount equal to, without double-counting, the net income or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with GAAP Consolidated Net Income (before minority interests and excluding the adjustment of rent to straight-line rent) for such period, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums (including, without limitation, any prepayment or make-whole premiums payable in connection with the prepayment of the Senior Notes), plus (x) the following to the extent deducted in computing such net income or loss the calculation of Consolidated Net Income for such period: ), without duplication: (a) Interest expense and, to the extent not reflected in such interest expense, non- cash interest payments (including the capitalization of interest), premium payments (including payments with respect to any make-whole premiums), debt discount, fees, charges, commissions and related costs and expenses incurred in connection with borrowed money $ (b) Federal, state, local and other income taxes $ (c) Depreciation and amortization expense $ (d) Integration, restructuring and severance expenses and charges incurred during such period in connection with any Acquisition or asset disposition consummated no more than six months prior to the beginning of such period not to exceed ten percent of Consolidated EBITDA for such Reference Period (calculated without giving effect to clause (ii)(D) of the definition of Consolidated EBITDA)) $ (e) Any costs, fees and expenses (other than of the character of those described in clause (ii)(D) of the definition of Consolidated EBITDA) incurred in connection with any actual or proposed Acquisition, merger, joint venture, issuance of Capital Stock, issuance or prepayment of Indebtedness, disposition or investment not prohibited by this Agreement, in each case whether or not consummated (f) Noncash charges (including stock based compensation and any impairment charge or write-off or write-down of goodwill or other intangible assets) $ (g) Unusual and non-recurring losses $ (h) All losses during such period resulting from any Asset Disposition outside the ordinary course of business $ (i) Add Lines B(2)(a) through B(2)(h) $ (3) Net Income plus Additions: Add Lines B(1) and B(2)(i) $ (4) Reductions from Consolidated Total Interest Expense Net Income (to the extent included in the calculation of Consolidated Net Income for such period), without duplication: $ (iia) losses attributable to the sale Unusual and non-recurring gains or other disposition of assets or debt restructurings in such period, (iii) real estate depreciation and amortization income for such period, period $ (ivb) acquisition costs related All gains during such period resulting from any Asset Disposition outside the ordinary course of business $ (c) Any cash disbursements during such period that relate to noncash charges included in the acquisition definition of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior Consolidated EBITDA pursuant to FAS 141-R which do not represent a recurring cash item in clause (ii)(F) thereof during such period or in any future the twelve months preceding such period and $ (vd) other non-cash charges Any noncash gains for such period; and minus (y) all gains attributable period that represent the reversal of any accrual, or the reversal of any cash reserves, that relates to charges included in the sale or other disposition definition of assets in such period. The Borrower’s, the Trust’s, and any Subsidiary’s Pro Rata Share of the items comprising Consolidated EBITDA of any Partially-Owned Entity will be included in pursuant to clause (ii)(D) or (ii)(F) thereof during such period or the twelve months preceding such period $ (e) Add Lines B(4)(a) through (d) above ($ ) (5) Consolidated EBITDA, calculated in a manner consistent with the above described treatment for the Borrower, the Trust and their respective Subsidiaries”.: Subtract Line B(4)(e) from Line B(3) $

Consolidated EBITDA. In relation For any period, for the Borrower and its Subsidiaries on a consolidated basis (and without double-counting), (a) Net Income (or Loss) of Borrower and its Subsidiaries for such period determined on a consolidated basis (excluding any income or losses from minority interests in the case of the Borrower), in accordance with GAAP excluding acquisition related costs, and exclusive of the following (but only to the Borrowerextent included in the determination of such Net Income (or Loss)): (i) depreciation and amortization expense; (ii) interest expense and amortization of deferred financing costs; (iii) income tax expense; (iv) acquisition, the Trust transaction and their respective Subsidiaries integration expenses; (v) non-cash impairment of long lived assets; (vi) non-cash income or expenses; (vii) extraordinary or non-recurring income or expenses; (viii) non-cash stock based compensation; and (ix) extraordinary or non-recurring gains and losses; plus (b) such Person’s pro rata share of Consolidated EBITDA determined pursuant to clause (a) above of its Unconsolidated Affiliates. Consolidated EBITDA shall be adjusted to remove any impact from straight line rent adjustments required under GAAP and amortization of deferred market rent into income pursuant to Statement of Financial Accounting Standards number 141. Consolidated Interest Expense. As of any date of determination and for any applicable period, an amount equal towith respect to Borrower and its Subsidiaries, without doubleduplication, total interest expense accruing or paid on Indebtedness of Borrower and its Subsidiaries, on a consolidated basis, during such period (including interest expense attributable to Capitalized Leases and amounts attributable to interest incurred under Derivatives Contracts, but excluding, to the extent non-countingcash, the net income or loss amortization of the Borrowerfinancing costs and charges), the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment of rent to straight-line rent) for such period, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification chargesGAAP, and prepayment premiums including (including, without limitation, any prepayment or make-whole premiums payable in connection with duplication) the prepayment Equity Percentage of the Senior Notes), plus (x) foregoing items for the following to the extent deducted in computing such net income or loss for such period: (i) Unconsolidated Affiliates and non-Wholly-Owned Subsidiaries of Borrower and its Subsidiaries. Consolidated Total Interest Expense for such period, (ii) losses attributable to shall not include capitalized interest funded under a construction loan by an interest reserve. For the sale or other disposition purposes of assets or debt restructurings in such period, (iii) real estate depreciation and amortization for such period, (iv) acquisition costs related to the acquisition of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do not represent a recurring cash item in such period or in any future period and (v) other non-cash charges for such period; and minus (y) all gains attributable to the sale or other disposition of assets in such period. The Borrower’s§9.7, the Trust’s, and any Subsidiary’s Pro Rata Share calculation of the items comprising Consolidated EBITDA of any Partially-Owned Entity will Interest Expense shall be included in Consolidated EBITDA, calculated in adjusted by Borrower on a manner consistent with the above described treatment pro forma basis satisfactory to Agent to adjust for the BorrowerALF Sale, the Trust Borrower Refinancings and their respective Subsidiaries”the Preferred Securities Repayment.

Consolidated EBITDA. In relation 1. Consolidated EBITDA for such period: (a) Consolidated Net Income for such period: Plus, without duplication and to the Borrower, the Trust extent already deducted (and their respective Subsidiaries for any applicable period, an amount equal to, without double-counting, the net income or loss of the Borrower, the Trust and their respective Subsidiaries determined not added back) in accordance with GAAP (before minority interests and excluding the adjustment of rent to straight-line rent) arriving at such Consolidated Net Income for such period, calculated without regard as determined on a Consolidated basis for the Borrower and its Subsidiaries in accordance with GAAP (b) Depreciation and amortization expense for such period: (c) Provisions for Taxes during such period: (d) Consolidated Interest Expense and non-cash or deferred interest financing costs for such period: (e) Compensation expense incurred during such period with respect to gains the issuance of up to 2,710,000 shares of common stock pursuant to Section 5.31 of the Merger Agreement: (f) Non-cash compensation expense incurred during such period including any such expenses related to the issuance of Capital Stock in connection therewith: (g) Costs and expenses incurred during such period in connection with entering into the Loan Documents and any amendments required under the First Lien Loan Documents relating thereto3: (h) Expenses or losses on early retirement charges incurred during such period in connection with any issuance of debt Indebtedness or debt restructuring, debt modification charges, and prepayment premiums any amendment of any instrument governing any Indebtedness4: (i) Unusual or nonrecurring non-cash expenses or charges for such period (including, without limitation, any prepayment whether or make-whole premiums payable not otherwise includable as a separate item in connection with the prepayment statement of the Senior Notes), plus (x) the following to the extent deducted in computing such net income or loss for such period: (i) Consolidated Total Interest Expense Net Income for such period, (ii) non-cash losses attributable to the sale or other disposition on sales of assets or debt restructurings in such period, (iii) real estate depreciation and amortization for such period, (iv) acquisition costs related to outside the acquisition ordinary course of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do business): 4 Amount may not represent a recurring cash item in such period or exceed $500,000 in any future period and Fiscal Quarter. (vj) other nonNon-cash charges for such period; period relating to the accretion of debt discount and minus amortization of warrants and changes in derivative liabilities: (yk) all gains Other non-cash charges during such period5: (l) Losses or charges for such period associated with the writedowns or impairment of assets or intangibles (including writedowns of goodwill or other assets pursuant to FASB 142 and 144, writedowns relating to discontinued operations pursuant to FASB 144 and charges pursuant to FASB 141): (m) Consolidated EBITDA (if negative) attributable to any property that is the sale subject of a Material Disposition during such period: (n) Amounts paid or other disposition owing during such period to consultants pursuant to engagement letters approved in writing by the Initial Lender: (o) Fees and charges of accountants, lawyers, financial advisors and consultants for providing services to the Company and classified as such in the Company's Section 5.01 Financials that have been actually paid during such period by the Borrower that are of the type that are classified as such in the Company's Section 5.01 Financials with respect to the Fiscal Year ended December 31, 20106: Minus, without duplication and to the extent included in arriving at such Consolidated Net Income for such period (p) Interest income for such period: (q) Unusual or nonrecurring non-cash gains increasing Consolidated Net Income for such period (including whether or not includable as a separate item in the Statement of Consolidated Net Income for such period, non-cash gain on sales of assets outside the ordinary course of business): (r) Income tax credits for such period to the extent not netted from provisions for Taxes: (s) Any other non-cash gains increasing Consolidated Net Income during such period7: (t) Any cash payment made during such period in respect of items in Lines (i), (j) or (k) subsequent to the Fiscal Quarter in which the relevant non-cash expenses or losses were reflected as a charge in the statement of Consolidated Net Income for such period: 2. The Borrower’s, the Trust’s, and any Subsidiary’s Pro Rata Share of the items comprising Consolidated EBITDA of any Partially-Owned Entity will be included in Consolidated EBITDA, calculated in a manner consistent with the above described treatment for the Borrowerprior three Fiscal Quarters: 3. Consolidated EBITDA for the prior four Fiscal Quarters [The sum of (a) through (n), minus the Trust and their respective Subsidiaries”.sum of (p) through (t), plus Line A2]: 4. Consolidated EBITDA for the prior eleven Fiscal Months: 5. Consolidated EBITDA for the prior twelve Fiscal Months [The sum of (a) through (o) minus the sum of (p) through (t), plus Line A4]:

Consolidated EBITDA. In relation Consolidated Net Income $ plus without duplication and to the Borrowerextent reflected as a charge in the statement of such Consolidated Net Income for such period: (a) income tax expense $ (b) Consolidated Cash Interest Expense and PIK Interest expense of such Person, the Trust amortization or write-off of debt discount and their respective Subsidiaries for any applicable perioddebt issuance costs and commissions, an amount equal discounts and other fees and charges associated with Indebtedness $ (c) depreciation and amortization expense $ (d) amortization of intangibles (including, but not limited to, without doublegoodwill) and organization costs $ (e) any extraordinary, unusual or non-countingrecurring expenses or losses (including, whether or not otherwise includable as a separate item in the net income or loss statement of the Borrower, the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment of rent to straight-line rent) such Consolidated Net Income for such period, calculated without regard to gains or losses on early retirement sales of debt or debt restructuring, debt modification assets) $ (f) any other non-cash charges, including (in case of clause (e) and prepayment premiums (including, without limitation, any prepayment or make-whole premiums payable in connection with the prepayment of the Senior Notesf)), plus charges representing (xi) accruals of or reserves for cash expenditures in a future period, (ii) amortization of prepaid items paid in cash in a prior period or (iii) marked-to-market charges under any Hedging Agreements $ minus to the following extent included in the statement of such Consolidated Net Income for such period: the sum of (a) interest income (except to the extent deducted in computing such net determining Consolidated Cash Interest Expense or PIK Interest), (b) any extraordinary, unusual or non-recurring income or loss gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets) and (c) any other non-cash income, including (in case of clauses (b) and (c)), marked-to-market gains under any Hedging Agreements, all as determined on a consolidated basis ($ ) minus whether or not included in the statement of such Consolidated Net Income for such period: (i) Consolidated Total Interest Expense for such period, (ii) losses attributable to the sale or other disposition of assets or debt restructurings in such period, (iii) real estate depreciation and amortization for such period, (iv) acquisition costs related to the acquisition of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do not represent a recurring all cash item expenditures in such period for (A) previously accrued or reserved for charges or (B) prepaid items to be amortized in any future period and periods. (v$ ) other non-cash charges for such period; and minus (y) all gains attributable to the sale or other disposition of assets in such period. The Borrower’s, the Trust’s, and any Subsidiary’s Pro Rata Share of the items comprising Consolidated EBITDA of any Partially-Owned Entity will be included in Consolidated EBITDA, calculated in a manner consistent with the above described treatment for the Borrower, the Trust and their respective Subsidiaries”.$

Consolidated EBITDA. In relation to the Borrower, the Trust and their respective Subsidiaries for any applicable period, an amount equal to, without double-counting, the net income or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment of rent to straight-line rent) Consolidated Net Income for such period, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums (including, without limitation, any prepayment or make-whole premiums payable in connection with the prepayment of the Senior Notes), period plus (xa) the following without duplication and to the extent deducted in computing determining such net income or loss for such period: Consolidated Net Income, the sum of (i) Consolidated Total Interest Expense consolidated interest expense for such period, (ii) losses attributable to the sale or other disposition of assets or debt restructurings in consolidated income tax expense for such periodperiod (including all single business tax expenses imposed by state law), (iii) real estate all amounts attributable to depreciation and amortization for such period, (iv) acquisition costs related to the acquisition of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do not represent a recurring cash item in such period or in any future period and (v) other non-cash extraordinary noncash charges for such period; , (v) interest-equivalent costs associated with any Specified Vendor Receivables Financing for such period, whether accounted for as interest expense or loss on the sale of receivables, and all Preferred Dividends, (vi) all losses during such period that relate to the retirement of Debt, (vii) noncash expenses during such period resulting from the grant of Equity Interests to management and employees of the Parent Borrower or any of the Subsidiaries, (viii) the aggregate amount of deferred financing expenses for such period, (ix) all other noncash expenses or losses of the Parent Borrower or any of the Subsidiaries for such period (excluding any such charge that constitutes an accrual of or a reserve for cash charges for any future period), (x) any nonrecurring fees, expenses or charges realized by the Parent Borrower or any of the Subsidiaries for such period related to any offering of Equity Interests or incurrence of Debt, whether or not consummated, (xi) fees and expenses in connection with the Transactions, (xii) any nonrecurring costs and expenses arising from the integration of any business acquired pursuant to any Permitted Acquisition consummated after the Closing Date, (xiii) any nonrecurring expenses or similar costs relating to cost savings projects, including restructuring and severance expenses, (xiv) net losses from discontinued operations, (xv) losses associated with the prepayment of leases (whether operating leases or capital leases) outstanding on January 1, 2015 from discontinued operations, and (xvi) losses or charges associated with asset sales otherwise permitted hereunder, minus (yb) all gains attributable without duplication and to the sale extent included in determining such Consolidated Net Income, (i) any extraordinary gains for such period, (ii) any non-cash income, profits or gains for such period and (iii) any gains realized from the retirement of Debt after the Closing Date, all determined on a consolidated basis in accordance with GAAP; provided, however that the amounts added to Consolidated Net Income pursuant to clauses (xii) through (xvi) above for any period shall not exceed twenty percent (20%) of Consolidated EBITDA for such period (determined without including amounts added to Consolidated Net Income pursuant to clauses (xii) through (xvi) above for such period). If any Borrower or any Subsidiary has made any Permitted Acquisition or Significant Investment or any sale, transfer, lease or other disposition of assets outside of the ordinary course of business permitted by Section 10.2.5 during the relevant period for determining any leverage ratio hereunder, Consolidated EBITDA for the relevant period shall be calculated only for purposes of determining such leverage ratio after giving pro forma effect thereto, as if such Permitted Acquisition or Significant Investment or sale, transfer, lease or other disposition of assets had occurred on the first day of the relevant period for determining Consolidated EBITDA; provided that with respect to any Significant Investment, (x) any pro forma adjustment made to Consolidated EBITDA shall be in proportion to the percentage ownership of such Borrower or such Subsidiary, as applicable, in the Subject Person (e.g. if such Borrower acquires 70% of the Equity Interests of the Subject Person, a pro forma adjustment to Consolidated EBITDA shall be made with respect to no more than 70% of the EBITDA of the Subject Person) and (y) pro forma effect shall only be given to such Significant Investment if the Debt of the Subject Person is included in Total Debt for purposes of calculating the applicable leverage ratio in proportion to the percentage ownership of such Borrower or such Subsidiary, as applicable, in such Subject Person. Any such pro forma calculations may include operating and other expense reductions and other adjustments for such period resulting from any Permitted Acquisition, or sale, transfer, lease or other disposition of assets that is being given pro forma effect to the extent that such operating and other expense reductions and other adjustments (a) would be permitted pursuant to Article XI of Regulation S-X under the Securities Act of 1933 (“Regulation S-X”) or (b) are reasonably consistent with the purpose of Regulation S-X as determined in good faith by the Borrowers in consultation with the Agent. Consolidated Net Income: for any period. The Borrower’s, the Trust’s, and any Subsidiary’s Pro Rata Share net income or loss of the items comprising Consolidated EBITDA Parent Borrower and the Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income of any Partially-Owned Entity will be Person (other than the Parent Borrower or a Significant Investment) in which any other Person (other than the Parent Borrower or any Subsidiary or any director holding qualifying shares in compliance with Applicable Law) owns an Equity Interest, except to the extent of the amount of dividends or other distributions actually paid to the Parent Borrower or any of the Subsidiaries during such period, (b) the income or loss of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Parent Borrower or any Subsidiary or the date that such Person’s assets are acquired by the Parent Borrower or any Subsidiary and (c) the cumulative effect of a change in accounting principles during such period to the extent included in Consolidated EBITDA, calculated in a manner consistent with the above described treatment for the Borrower, the Trust and their respective Subsidiaries”Net Income.

Consolidated EBITDA. In relation 1. Consolidated EBITDA for such period: (a) Consolidated Net Income for such period: Plus, without duplication and to the Borrower, the Trust extent already deducted (and their respective Subsidiaries for any applicable period, an amount equal to, without double-counting, the net income or loss of the Borrower, the Trust and their respective Subsidiaries determined not added back) in accordance with GAAP (before minority interests and excluding the adjustment of rent to straight-line rent) arriving at such Consolidated Net Income for such period, calculated without regard as determined on a Consolidated basis for the Borrower and its Subsidiaries in accordance with GAAP (b) Depreciation and amortization expense for such period: (c) Provisions for Taxes during such period: (d) Consolidated Interest Expense and non-cash or deferred interest financing costs for such period: (e) Compensation expense incurred during such period with respect to gains the issuance of up to 2,710,000 shares of common stock pursuant to Section 5.31 of the Merger Agreement: (f) Non-cash compensation expense incurred during such period including any such expenses related to the issuance of Capital Stock in connection therewith: (g) Costs and expenses incurred during such period in connection with entering into the Loan Documents and any amendments required under the First Lien Loan Documents relating thereto 3: (h) Expenses or losses on early retirement charges incurred during such period in connection with any issuance of debt Indebtedness or debt restructuring, debt modification charges, and prepayment premiums any amendment of any instrument governing any Indebtedness4: (i) Unusual or nonrecurring non-cash expenses or charges for such period (including, without limitation, any prepayment whether or make-whole premiums payable not otherwise includable as a separate item in connection with the prepayment statement of the Senior Notes), plus (x) the following to the extent deducted in computing such net income or loss for such period: (i) Consolidated Total Interest Expense Net Income for such period, (ii) non-cash losses attributable to the sale or other disposition on sales of assets or debt restructurings outside the ordinary course of business): 3 Amount may not exceed $6,000,000 in such period, (iii) real estate depreciation and amortization for such period, (iv) acquisition costs related to the acquisition aggregate during the term of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do Credit Agreement. 4 Amount may not represent a recurring cash item in such period or exceed $500,000 in any future period and Fiscal Quarter. (vj) other nonNon-cash charges for such period; period relating to the accretion of debt discount and minus amortization of warrants and changes in derivative liabilities: (yk) all gains Other non-cash charges during such period5: (l) Losses or charges for such period associated with the writedowns or impairment of assets or intangibles (including writedowns of goodwill or other assets pursuant to FASB 142 and 144, writedowns relating to discontinued operations pursuant to FASB 144 and charges pursuant to FASB 141): (m) Consolidated EBITDA (if negative) attributable to any property that is the sale subject of a Material Disposition during such period: (n) Amounts paid or other disposition owing during such period to consultants pursuant to engagement letters approved in writing by the Initial Lender: Minus, without duplication and to the extent included in arriving at such Consolidated Net Income for such period (o) Interest income for such period: (p) Unusual or nonrecurring non-cash gains increasing Consolidated Net Income for such period (including whether or not includable as a separate item in the Statement of Consolidated Net Income for such period, non-cash gain on sales of assets outside the ordinary course of business): (q) Income tax credits for such period to the extent not netted from provisions for Taxes: (r) Any other non-cash gains increasing Consolidated Net Income during such period6: (s) Any cash payment made during such period in respect of items in Lines (i), (j) or (k) subsequent to the Fiscal Quarter in which the relevant non-cash expenses or losses were reflected as a charge in the statement of Consolidated Net Income for such period: 5 Amount may not exceed $500,000 in any Fiscal Quarter. The Borrower’s, the Trust’s, and 6 Amount may not exceed $500,000 in any Subsidiary’s Pro Rata Share of the items comprising Fiscal Quarter. 2. Consolidated EBITDA of any Partially-Owned Entity will be included in Consolidated EBITDA, calculated in a manner consistent with the above described treatment for the Borrowerprior three quarters: 3. Consolidated EBITDA for the prior four Fiscal Quarters [The sum of (a) through (n), minus the Trust and their respective Subsidiaries”.sum of (o) through (s), plus Line A2]:

Consolidated EBITDA. In relation to On the Borrowerdate of determination, the Trust and their respective Subsidiaries for any applicable period, an amount equal to, to (as applicable) the following amounts for each Person of the Consolidated Group for such period determined on a Consolidated basis (without double-counting, the duplication): (a) net income (or loss of the Borrowerloss) including noncontrolling interests on a Consolidated basis, the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment of rent to straight-line rent) for such periodGAAP, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums (including, without limitation, any prepayment or make-whole premiums payable in connection with the prepayment exclusive of the Senior Notes), plus following (x) the following but only to the extent deducted included in computing determination of such net income or loss for such period: (loss)): (i) Consolidated Total Interest Expense for such period, (ii) losses attributable to the sale or other disposition of assets or debt restructurings in such period, (iii) real estate depreciation and amortization expense; (ii) Interest Expense; (iii) income tax expense; (iv) extraordinary or nonrecurring gains and losses, including gains or losses associated with the sale of operating properties and charges associated with any write‐off of development expenses; (v) other non‐cash items to the extent not actually paid as a cash expense, including non‐cash losses or gains associated with (A) the grant of equity interests to employees, officers and directors, (B) hedging activities, (C) impairment of goodwill and (D) one‐time accounting adjustments; (vi) charges (including any premiums or make‐whole amounts) associated with any prepayment, redemption or repurchase of indebtedness or early retirement of preferred stock; (vii) costs in connection with acquisitions, including non‐capitalized costs incurred in connection with acquisitions that fail to close; (viii) rental income associated with any Tenant under a Material Commercial Lease, which is not a Credit Lease, for the period of time (A) that the Tenant under such periodMaterial Commercial Lease (X) has vacated their leased premises or (B) following the 90th day of such Tenant’s default under their Material Commercial Lease, for so long thereafter as such default is not cured; and (ix) rental income associated with any tenant under a Material Commercial Lease that filed for bankruptcy; provided, however, that, rental income for any newly executed Material Commercial Lease that is replacing a bankrupt tenant under a Material Commercial Lease or a Material Commercial Lease for a previously vacant space shall be included on a proforma annualized basis until such time as a historical six (6) months of actual rental income has been established; plus (b) such Person’s pro rata share of EBITDA of its Unconsolidated Affiliates and their Subsidiaries as provided below. With respect to Unconsolidated Affiliates, EBITDA attributable to such entities shall be excluded but EBITDA shall include such Person’s Equity Percentage of net income (or loss) from such Unconsolidated Affiliates plus such Person’s Equity Percentage of (i) depreciation and amortization expense; (ii) Interest Expense; (iii) income tax expense; (iv) acquisition closing costs related for acquisitions permitted under the Loan Documents and extraordinary or non‐recurring gains and losses (including gains and losses on the sale of assets) and income and expense allocated to the acquisition of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do not represent a recurring cash item in such period or in any future period minority owners; and (v) other non-cash charges for such period; and minus (y) all gains attributable non‐cash items to the sale or other disposition extent not actually paid as a cash expense, in each case, from such Unconsolidated Affiliates. EBITDA shall be adjusted to remove any impact from straight line rent leveling adjustments required under GAAP and amortization of assets in such period. The Borrower’s, the Trust’s, and any Subsidiary’s Pro Rata Share intangibles pursuant to Statement of the items comprising Consolidated EBITDA of any Partially-Owned Entity will be included in Consolidated EBITDA, calculated in a manner consistent with the above described treatment for the Borrower, the Trust and their respective Subsidiaries”Financial Accounting Standards number 141.

Consolidated EBITDA. In relation to the Borrower, the Trust and their respective Subsidiaries for any applicable period, an amount equal to, without double-counting, the net income or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment of rent to for so-called “straight-line rentrent accounting”) for such period, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums (including, without limitation, any prepayment or make-whole premiums payable in connection with the prepayment of the Senior Notes), plus (x) the following to the extent deducted in computing such net Consolidatednet income or loss for such period: (i) Consolidated Total Interest Expense for such period, (ii) losses attributable to the sale or other disposition of assets or debt restructurings in such period, (iii) real estate depreciation and amortization for such period, and (iviv(iv) acquisition costs related to the acquisition of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do not represent a recurring cash item in such period or in any future period period, and (v) other non-cash charges for such period; and minus (y) all gains attributable to the sale or other disposition of assets or debt restructurings in such period. The , in each case adjusted to include the Borrower’s, the Trust’s, and ’s or any Subsidiary’s Pro Rata Share pro rata share of EBITDA (and the items comprising Consolidated EBITDA of EBITDA) from any Partially-Owned Entity will be included in Consolidated EBITDAsuch period, calculated based on its percentage ownership interest in a manner consistent with the above described treatment for such Partially-Owned Entity (or such other amount to which the Borrower, the Trust and their respective Subsidiaries”or such Subsidiary is entitled or for which the Borrower, the Trust or such Subsidiary is obligated based on an arm’s length agreement).

Consolidated EBITDA. In relation to the Borrower, the Trust and their respective Subsidiaries for any applicable periodfiscal quarter, an amount equal to, without double-counting, the net income or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with GAAP (before minority interests and excluding the adjustment of rent to for so-called “straight-line rentrent accounting”) for such period, calculated without regard to gains or losses on early retirement of debt or debt restructuring, debt modification charges, and prepayment premiums (including, without limitation, any prepayment or make-whole premiums payable in connection with the prepayment of the Senior Notes)quarter, plus (x) the following to the extent deducted in computing such Consolidated net income or loss for such periodquarter: (i) Consolidated Total Interest Expense for such periodquarter, (ii) losses attributable to the sale or other disposition of assets or debt restructurings in such period, (iii) real estate depreciation and amortization for such periodquarter, (iv) acquisition costs related to the acquisition of Real Estate Assets or the acquisition or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do not represent a recurring cash item in such period or in any future period and (viii) other non-cash charges for such periodquarter; and minus (y) all gains attributable to the sale or other disposition of assets or debt restructurings in such period. The quarter, in each case adjusted to include the Borrower’s, the Trust’s, and ’s or any Subsidiary’s Pro Rata Share pro rata share of EBITDA (and the items comprising Consolidated EBITDA of EBITDA) from any Partially-Owned Entity will be included in such quarter, based on its percentage ownership interest in such Partially-Owned Entity (or such other amount to which the Borrower, the Trust or such Subsidiary is entitled or for which the Borrower, the Trust or such Subsidiary is obligated based on an arm’s length agreement). In determining Consolidated EBITDAEBITDA for the purposes of calculating Fair Market Value of Real Estate Assets and Consolidated Total Adjusted Asset Value, calculated in a manner consistent with the above described treatment for (i) any and all income of the Borrower, the Trust and their respective Subsidiaries”Subsidiaries received from any Real Estate Asset Under Development or any other Real Estate Asset that is included in such calculations at its cost basis value shall be excluded, (ii) for the first two complete fiscal quarters after a Real Estate Asset is acquired, it shall be included in such calculations at its cost basis value, as determined in accordance with GAAP, and (iii) Consolidated EBITDA shall be adjusted on a pro forma basis to account for Real Estate Assets that were sold by the Borrower during such quarter by reducing the Consolidated EBITDA generated by such Real Estate Asset and to account for Real Estate Assets that were acquired by the Borrower during such quarter by projecting the Consolidated EBITDA generated by any such Real Estate Asset for the portion of the applicable quarter during which the Borrower owned such Real Estate Asset over the entire applicable quarter. For purposes of this definition, it is agreed that (a) for the fiscal quarter ending December 31, 2003, Consolidated EBITDA is equal to Consolidated EBITDA for the two consecutive fiscal months ending on December 31, 2003 multiplied by 1.5, (b) for the two consecutive fiscal quarters ending March 31, 2004, Consolidated EBITDA is equal to Consolidated EBITDA for the five consecutive fiscal months ending on March 31, 2004 multiplied by 1.2, (c) for the four consecutive fiscal quarters ending December 31, 2003, Consolidated EBITDA is equal to Consolidated EBITDA for the two consecutive fiscal months ending on December 31, 2003 multiplied by 6, (d) for the four consecutive fiscal quarters ending March 31, 2004, Consolidated EBITDA is equal to Consolidated EBITDA for the five consecutive fiscal months ending on March 31, 2004 multiplied by 2.4, (e) for the four consecutive fiscal quarters ending June 30, 2004, Consolidated EBITDA is equal to Consolidated EBITDA for the eight consecutive fiscal months ending on June 30, 2004 multiplied by 1.5 and (f) for the four consecutive fiscal quarters ending September 30, 2004, Consolidated EBITDA is equal to Consolidated EBITDA for the eleven consecutive fiscal months ending on September 30, 2004 multiplied by 1.09. In addition, in respect of charges required to be taken against Consolidated EBITDA and bonuses and stock grants made by the Trust, in each case in connection with the Initial Public Offering, only one sixth (1/6) of the aggregate amount of such Initial Public Offering charges taken in the fiscal quarter ending December 31, 2003 shall be required to reduce Consolidated EBITDA for such quarter.