Common use of Indebtedness and Cash Flow Covenants Clause in Contracts

Indebtedness and Cash Flow Covenants. The Borrower on a consolidated basis with its Subsidiaries shall not permit, as of the last day of any fiscal quarter: (i) the sum of (x) Consolidated Outstanding Indebtedness minus (y) the amount of restricted cash and Cash Equivalents held as collateral or in escrow in a bank account by a lender, creditor, or counterparty (“Restricted Cash Collateral”) with respect to any Consolidated Outstanding Indebtedness to exceed sixty percent (60%) of Consolidated Market Value; provided that such ratio may exceed 60% but shall not exceed 62.5% for up to four (4) consecutive fiscal quarters following a Major Acquisition; (ii) the sum of (x) Consolidated Secured Indebtedness minus (y) Restricted Cash Collateral with respect to Consolidated Secured Indebtedness to exceed thirty-five percent (35%) of Consolidated Market Value; provided that such ratio may exceed 35% but shall not exceed 40% for up to four (4) consecutive fiscal quarters following a Major Acquisition; (iii) the Value of Unencumbered Assets to be less than 1.67 times the sum of (x) Consolidated Unsecured Indebtedness minus (y) Restricted Cash Collateral with respect to Consolidated Unsecured Indebtedness; provided that such ratio may be less than 1.67 to 1.00 but shall not be less than 1.60 to 1.00 for up to four (4) consecutive fiscal quarters following a Major Acquisition; and (iv) Consolidated Cash Flow to be less than 1.5 times Fixed Charges, based on the most recent four (4) fiscal quarters. Notwithstanding anything herein to the contrary, all calculations to determine compliance with the above financial covenants shall exclude values, including, without limitation, Indebtedness, assets, liabilities, income, revenues and expenses, attributable to any Project owned by a member of the Consolidated Group or an Investment Affiliate if (1) a receiver, custodian, trustee, examiner, liquidator or similar official has been appointed for such Project and (2) the Indebtedness encumbering or attributable to such Project is Nonrecourse Indebtedness, and (3) no recourse event has been triggered and is continuing under any guaranty or indemnity agreement of a member of the Consolidated Group or an Investment Affiliate related to such Nonrecourse Indebtedness as a result of any of the events described in clause (1) of this paragraph which has not been waived in writing by the holder of such Nonrecourse Indebtedness or with respect to which the holder of such Nonrecourse Indebtedness has not otherwise agreed in writing to forbear from enforcing or exercising its rights under such guaranty or indemnity agreement (but only for so long as such waiver or forbearance continues), provided, further, however, that in no event shall this paragraph be deemed or construed to exclude any Project, member of the Consolidated Group or Investment Affiliate from any covenants, requirements or obligations of such entities set forth in any other Section of this Agreement and in the other Loan Documents. The aggregate amount of such members of the Consolidated Group and Investment Affiliates’ pro rata share of all such Nonrecourse Indebtedness encumbering or attributable to all such Projects excluded from calculations to determine compliance with the above financial covenants shall not exceed $300,000,000.

Indebtedness and Cash Flow Covenants. The Borrower on a consolidated basis with its Subsidiaries shall not permit, as of the last day of any fiscal quarter: (i) the sum of (x) Consolidated Outstanding Indebtedness minus (y) the amount of restricted cash and Cash Equivalents held as collateral or in escrow in a bank account by a lender, creditor, or counterparty (“Restricted Cash Collateral”) with respect to any Consolidated Outstanding Indebtedness to exceed sixty percent (60%) of Consolidated Market Value; provided that such ratio may exceed 60% but shall not exceed 62.565% for up to four (4) consecutive fiscal quarters following a Major Acquisition; (ii) the sum of (x) Consolidated Secured Indebtedness minus (y) Restricted Cash Collateral with respect to Consolidated Secured Indebtedness to exceed thirty-five percent (35%) of Consolidated Market Value; provided that such ratio may exceed 35% but shall not exceed 40% for up to four (4) consecutive fiscal quarters following a Major Acquisition; (iii) the Value of Unencumbered Assets to be less than 1.67 times the sum of (x) Consolidated Unsecured Indebtedness minus (y) Restricted Cash Collateral with respect to Consolidated Unsecured Indebtedness; provided that such ratio may be less than 1.67 to 1.00 but shall not be less than 1.60 1.55 to 1.00 for up to four (4) consecutive fiscal quarters following a Major Acquisition; and (iv) Consolidated Cash Flow to be less than 1.5 times Fixed Charges, based on the most recent four (4) fiscal quarters. Notwithstanding anything herein to the contrary, all calculations to determine compliance with the above financial covenants shall exclude values, including, without limitation, Indebtedness, assets, liabilities, income, revenues and expenses, attributable to any Project owned by a member of the Consolidated Group or an Investment Affiliate if (1) a receiver, custodian, trustee, examiner, liquidator or similar official has been appointed for such Project and (2) the Indebtedness encumbering or attributable to such Project is Nonrecourse Indebtedness, and (3) no recourse event has been triggered and is continuing under any guaranty or indemnity agreement of a member of the Consolidated Group or an Investment Affiliate related to such Nonrecourse Indebtedness as a result of any of the events described in clause (1) of this paragraph which has not been waived in writing by the holder of such Nonrecourse Indebtedness or with respect to which the holder of such Nonrecourse Indebtedness has not otherwise agreed in writing to forbear from enforcing or exercising its rights under such guaranty or indemnity agreement (but only for so long as such waiver or forbearance continues), provided, further, however, that in no event shall this paragraph be deemed or construed to exclude any Project, member of the Consolidated Group or Investment Affiliate from any covenants, requirements or obligations of such entities set forth in any other Section of this Agreement and in the other Loan Documents. The aggregate amount of such members of the Consolidated Group and Investment Affiliates’ pro rata share of all such Nonrecourse Indebtedness encumbering or attributable to all such Projects excluded from calculations to determine compliance with the above financial covenants shall not exceed $300,000,000.

Indebtedness and Cash Flow Covenants. The Borrower General Partner on a consolidated basis with its the Borrower and their Subsidiaries shall not permitnot, as of the last day of any fiscal quarter, permit: (i) the sum ratio of Adjusted EBITDA to Fixed Charges to be less than 1.50 to 1.0 for the preceding 12 full calendar months throughout the remaining term of the Facility; (xii) Consolidated Outstanding Indebtedness minus (y) the amount of restricted cash and Cash Equivalents held as collateral or in escrow in a bank account by a lender, creditor, or counterparty (“Restricted Cash Collateral”) with respect to any Consolidated Outstanding Total Indebtedness to exceed sixty percent (60%) of Consolidated Market Total Asset Value; , provided that such ratio may exceed sixty percent (60% %) but shall may not exceed 62.5% for up to four sixty-five percent (465%) consecutive fiscal as at the end of no more than two quarters following a Major Acquisitionduring the term of this Agreement; (iiiii) The ratio obtained by dividing (a) the sum of (xi) Property Operating Income from Unencumbered Assets that are wholly-owned by the Borrower or a Subsidiary Guarantor for such quarter minus the Capital Expenditure Reserve Amount for such wholly-owned Unencumbered Assets for such quarter plus (ii) Earnings from Service Operations for such quarter (limited to 15% of the sum of Property Operating Income from wholly owned Unencumbered Assets and Earnings from Service Operations) by (b) the greater of (i) interest incurred on all Consolidated Secured Unsecured Indebtedness minus for such quarter and (yii) Restricted Cash Collateral with respect the amount of interest that would be payable on all Consolidated Unsecured Indebtedness for such quarter using an assumed interest rate of 6.75% from the closing date through the quarter ending December 31, 2010, and 7.00% thereafter) to be less than 1.75 to 1.0 for the quarter then ended; or (iv) Consolidated Secured Indebtedness to exceed thirty-five thirty percent (3530%) of Consolidated Market Total Asset Value; provided that such ratio may exceed 35% but shall not exceed 40% for up to four (4) consecutive fiscal quarters following a Major Acquisition; (iii) the Value of Unencumbered Assets to be less than 1.67 times the sum of (x) Consolidated Unsecured Indebtedness minus (y) Restricted Cash Collateral with respect to Consolidated Unsecured Indebtedness; provided that such ratio may be less than 1.67 to 1.00 but shall not be less than 1.60 to 1.00 for up to four (4) consecutive fiscal quarters following a Major Acquisition; and (iv) Consolidated Cash Flow to be less than 1.5 times Fixed Charges, based on the most recent four (4) fiscal quarters. Notwithstanding anything herein to the contrary, all calculations to determine compliance with the above financial covenants shall exclude values, including, without limitation, Indebtedness, assets, liabilities, income, revenues and expenses, attributable to any Project owned by a member of the Consolidated Group or an Investment Affiliate if (1) a receiver, custodian, trustee, examiner, liquidator or similar official has been appointed for such Project and (2) the Indebtedness encumbering or attributable to such Project is Nonrecourse Indebtedness, and (3) no recourse event has been triggered and is continuing under any guaranty or indemnity agreement of a member of the Consolidated Group or an Investment Affiliate related to such Nonrecourse Indebtedness as a result of any of the events described in clause (1) of this paragraph which has not been waived in writing by the holder of such Nonrecourse Indebtedness or with respect to which the holder of such Nonrecourse Indebtedness has not otherwise agreed in writing to forbear from enforcing or exercising its rights under such guaranty or indemnity agreement (but only for so long as such waiver or forbearance continues), provided, further, however, that in no event shall this paragraph be deemed or construed to exclude any Project, member of the Consolidated Group or Investment Affiliate from any covenants, requirements or obligations of such entities set forth in any other Section of this Agreement and in the other Loan Documents. The aggregate amount of such members of the Consolidated Group and Investment Affiliates’ pro rata share of all such Nonrecourse Indebtedness encumbering or attributable to all such Projects excluded from calculations to determine compliance with the above financial covenants shall not exceed $300,000,000.

Indebtedness and Cash Flow Covenants. The Borrower on a consolidated basis with its Subsidiaries shall not permit, as of the last day of any fiscal quarter: (i) the sum of (x) Consolidated Outstanding Indebtedness minus (y) the amount of restricted cash and Cash Equivalents held as collateral or in escrow in a bank account by a lender, creditor, or counterparty (“Restricted Cash Collateral”) with respect to any Consolidated Outstanding Indebtedness to exceed sixty percent (60%) of Consolidated Market Value; provided that such ratio may exceed 60% but shall not exceed 62.565% for up to four (4) consecutive fiscal quarters following a Major Acquisition; (ii) the sum of (x) Consolidated Secured Indebtedness minus (y) Restricted Cash Collateral with respect to Consolidated Secured Indebtedness to exceed thirty-five percent (35%) of Consolidated Market Value; provided that such ratio may exceed 35% but shall not exceed 40% for up to four (4) consecutive fiscal quarters following a Major Acquisition; (iii) the Value of Unencumbered Assets to be less than 1.67 times the sum of (x) Consolidated Unsecured Indebtedness minus (y) Restricted Cash Collateral with respect to Consolidated Unsecured Indebtedness; provided that such ratio may be less than 1.67 to 1.00 but shall not be less than 1.60 1.55 to 1.00 for up to four (4) consecutive fiscal quarters following a Major Acquisition; and; (iv) Consolidated Cash Flow to be less than 1.5 times Fixed Charges, based on the most recent four (4) fiscal quarters; and (v) the aggregate principal amount of Recourse Indebtedness that is secured by a Lien on partnership or other equity interests or by any other Lien which is not a mortgage Lien on real property shall not exceed $300,000,000. Notwithstanding anything herein to the contrary, all calculations to determine compliance with the above financial covenants shall exclude values, including, without limitation, Indebtedness, assets, liabilities, income, revenues and expenses, attributable to any Project owned by a member of the Consolidated Group or an Investment Affiliate if (1) a receiver, custodian, trustee, examiner, liquidator or similar official has been appointed for such Project and (2) the Indebtedness encumbering or attributable to such Project is Nonrecourse Indebtedness, and (3) no recourse event has been triggered and is continuing under any guaranty or indemnity agreement of a member of the Consolidated Group or an Investment Affiliate related to such Nonrecourse Indebtedness as a result of any of the events described in clause (1) of this paragraph which has not been waived in writing by the holder of such Nonrecourse Indebtedness or with respect to which the holder of such Nonrecourse Indebtedness has not otherwise agreed in writing to forbear from enforcing or exercising its rights under such guaranty or indemnity agreement (but only for so long as such waiver or forbearance continues), provided, further, however, that in no event shall this paragraph be deemed or construed to exclude any Project, member of the Consolidated Group or Investment Affiliate from any covenants, requirements or obligations of such entities set forth in any other Section of this Agreement and in the other Loan Documents. The aggregate amount of such members of the Consolidated Group and Investment Affiliates’ pro rata share of all such Nonrecourse Indebtedness encumbering or attributable to all such Projects excluded from calculations to determine compliance with the above financial covenants shall not exceed $300,000,000.

Indebtedness and Cash Flow Covenants. The Borrower on a consolidated basis with its Subsidiaries shall not permit, as of the last day of any fiscal quarter: (i) the sum of (x) Consolidated Outstanding Indebtedness minus (y) the amount of restricted cash and Cash Equivalents held as collateral or in escrow in a bank account by a lender, creditor, or counterparty (“Restricted Cash Collateral”) with respect to any Consolidated Outstanding Indebtedness to exceed sixty percent (60%) of Consolidated Market Value; provided that such ratio may exceed sixty percent (60% %) but shall not exceed 62.5% sixty-five percent (65%) for up to four (4) consecutive fiscal quarters following a Major AcquisitionAcquisition (including the fiscal quarter in which such Major Acquisition occurs); (ii) the sum of (x) Consolidated Secured Indebtedness minus (y) Restricted Cash Collateral with respect to Consolidated Secured Indebtedness to exceed thirty-five percent (35%) of Consolidated Market Value; provided that such ratio may exceed thirty-five percent (35% %) but shall not exceed forty percent (40% %) for up to four (4) consecutive fiscal quarters following a Major AcquisitionAcquisition (including the fiscal quarter in which such Major Acquisition occurs); (iii) the Value of Unencumbered Assets to be less than 1.67 times the sum of (x) Consolidated Unsecured Indebtedness minus (y) Restricted Cash Collateral with respect to Consolidated Unsecured Indebtedness; provided that such ratio may be less than 1.67 to 1.00 but shall not be less than 1.60 to 1.00 for up to four (4) consecutive fiscal quarters following a Major AcquisitionAcquisition (including the fiscal quarter in which such Major Acquisition occurs); and (iv) Consolidated Cash Flow to be less than 1.5 times Fixed Charges, based on the most recent four (4) fiscal quarters. Notwithstanding anything herein to the contrary, all calculations to determine compliance with the above financial covenants shall exclude values, including, without limitation, Indebtedness, assets, liabilities, income, revenues and expenses, attributable to any Project owned by a member of the Consolidated Group or an Investment Affiliate if (1) a receiver, custodian, trustee, examiner, liquidator or similar official has been appointed for such Project and (2) the Indebtedness encumbering or attributable to such Project is Nonrecourse Indebtedness, and (3) no recourse event has been triggered and is continuing under any guaranty or indemnity agreement of a member of the Consolidated Group or an Investment Affiliate related to such Nonrecourse Indebtedness as a result of any of the events described in clause (1) of this paragraph which has not been waived in writing by the holder of such Nonrecourse Indebtedness or with respect to which the holder of such Nonrecourse Indebtedness has not otherwise agreed in writing to forbear from enforcing or exercising its rights under such guaranty or indemnity agreement (but only for so long as such waiver or forbearance continues), provided, further, however, that in no event shall this paragraph be deemed or construed to exclude any Project, member of the Consolidated Group or Investment Affiliate from any covenants, requirements or obligations of such entities set forth in any other Section of this Agreement and in the other Loan Documents. The aggregate amount of such members of the Consolidated Group and Investment Affiliates’ pro rata share of all such Nonrecourse Indebtedness encumbering or attributable to all such Projects excluded from calculations to determine compliance with the above financial covenants shall not exceed $300,000,000.