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: (i) any Guaranteed Obligations or any Secured Indebtedness of any member of the Consolidated Group which is also Recourse Indebtedness to exist, (A) at any time prior to achievement of an Unencumbered Leverage Ratio of 1.50, which exceeds in the aggregate $50,000,000, and (B) at any time on and after the achievement of an Unencumbered Leverage Ratio of 1.50, which exceeds in the aggregate 10% of Total Asset Value; (ii) at any time prior to achievement of an Unencumbered Leverage Ratio of 1.50, any Unsecured Indebtedness to exist, other than the Obligations under this Agreement and up to $200,000,000 in the aggregate of other Unsecured Indebtedness; (iii) the Unencumbered Leverage Ratio to be less than (A) 1.10, at any time prior to the Unencumbered Trigger Date, (B) 1.50, on the Unencumbered Trigger Date and at any time subsequent to the Unencumbered Trigger Date through and including December 31, 2009, and (C) 1.60, at any time subsequent to December 31, 2009; (iv) Adjusted Annual EBITDA to be less than 1.50 times Fixed Charges at any time; (v) Secured Indebtedness to be (A) more than 0.50 times Total Asset Value at any time through and including the Unencumbered Trigger Date, or (B) more than 0.40 times Total Asset Value at any time subsequent to the Unencumbered Trigger Date; (vi) Consolidated Outstanding Indebtedness to be more than 0.60 times Total Asset Value at any time; (vii) the Unencumbered Asset Value to be less than $250,000,000 at any time; or (viii) at any time after the Unencumbered Trigger Date, Unsecured Debt Service Coverage to be less than 1.50 to 1.00.

Indebtedness and Cash Flow Covenants. The Borrower on a consolidated basis with its Subsidiaries shall not permit: (i) any Guaranteed Obligations or any Secured Indebtedness of any member of the Consolidated Group which is also Recourse Indebtedness to exist, (A) at any time prior other than up to achievement $75,000,000 of an Unencumbered Leverage Ratio of 1.50, such other Recourse Indebtedness which exceeds is also Secured Indebtedness in the aggregate aggregate, provided that no other single loan or facility may exceed $50,000,000, and (B) at any time on and after the achievement of an Unencumbered Leverage Ratio of 1.50, which exceeds in the aggregate 10% of Total Asset Value10,000,000; (ii) at any time prior to achievement of an Unencumbered Leverage Ratio of 1.50, any Unsecured Indebtedness to exist, other than the Obligations under this Agreement and (A) at all times prior to an Unencumbered Election made by Borrower under Section 2.3 up to $200,000,000 125,000,000 in the aggregate of other Unsecured Indebtedness, or (B) at any time after such an Unencumbered Election has been made up to $250,000,000 in the aggregate of other Unsecured Indebtedness, provided that at all times any such other Unsecured Indebtedness shall be incurred by Borrower only and not by any of its Subsidiaries and such other Unsecured Indebtedness shall not include any covenants more restrictive on Borrower and the Consolidated Group than those contained in this Agreement, as it may be amended or modified from time to time; (iii) the Unencumbered Leverage Ratio aggregate amount of Recourse Indebtedness, including both Secured Indebtedness which is also Recourse Indebtedness as permitted under Section 6.21(i) and Unsecured Indebtedness as permitted under Section 6.21(ii), to be less than exceed (A) 1.10at all times prior to an Unencumbered Election made by Borrower under Section 2.3, ten percent (10%) of Total Asset Value or (B) at any time prior to the after such an Unencumbered Trigger DateElection has been made, twenty percent (B20%) 1.50, on the Unencumbered Trigger Date and at any time subsequent to the Unencumbered Trigger Date through and including December 31, 2009, and (C) 1.60, at any time subsequent to December 31, 2009of Total Asset Value; (iv) Adjusted Annual EBITDA to be less than 1.50 2.00 times Fixed Charges at any time; (v) Secured Indebtedness to be (A) more than 0.50 times Total Asset Value at any time through and including the Unencumbered Trigger Date, or (B) more than 0.40 times Total Asset Value at any time subsequent to the Unencumbered Trigger Date; (vi) Consolidated Outstanding Indebtedness to be more than 0.60 times Total Asset Value at any time; (vii) the Unencumbered Asset Value to be less than $250,000,000 at any time; or (viiivi) at any time after an Unencumbered Election under Section 2.3 has been made by Borrower, the aggregate amount of Advances hereunder to be more than 0.60 times Unencumbered Trigger DateAsset Value; or (vii) at any time after an Unencumbered Election under Section 2.3 has been made by Borrower, Unsecured the Facility Debt Service Coverage to be less than 1.50 2.0 to 1.001.0. 6. Borrower hereby represents and warrants that, as of the Effective Date, there is no Default or Unmatured Default, the representations and warranties contained in Article V of the Credit Agreement are true and correct in all material respects as of such date and Borrower has no offsets or claims against any of the Lenders. 7. As expressly modified as provided herein, the Credit Agreement shall continue in full force and effect. 8. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Amendment by signing any such counterpart.

Indebtedness and Cash Flow Covenants. The Borrower on a consolidated basis with its Subsidiaries shall not permit: (i) any Guaranteed Obligations or any Secured Indebtedness of any member of the Consolidated Group which is also Recourse Indebtedness to exist, (A) at any time prior to achievement of an Unencumbered Leverage Ratio of 1.50, which exceeds in the aggregate $50,000,000, and (B) at any time on and after the achievement of an Unencumbered Leverage Ratio of 1.50, which exceeds in the aggregate 10% of Total Asset Value; (ii) at any time prior to achievement of an Unencumbered Leverage Ratio of 1.50, any Unsecured Indebtedness to exist, other than the Obligations arising under this Agreement Agreement, the obligations arising under the Line of Credit Agreement, and up to $200,000,000 in obligations arising under the aggregate of other Unsecured Indebtedness;Convertible Notes. (iii) the Unencumbered Leverage Ratio to be less than (A) 1.101.40, at any time prior to the Unencumbered Trigger Date, (B) 1.50, on the Unencumbered Trigger Date and at any time subsequent to the Unencumbered Trigger Date through and including December 31, 2009, and (C) 1.60, at any time subsequent to December 31, 2009; (iv) Adjusted Annual EBITDA to be less than 1.50 times Fixed Charges at any time; (v) Secured Indebtedness to be (A) more than 0.50 times Total Asset Value at any time through and including the Unencumbered Trigger Date, or (B) more than 0.40 times Total Asset Value at any time subsequent to the Unencumbered Trigger Date; (vi) Consolidated Outstanding Indebtedness to be more than 0.60 times Total Asset Value at any time; (vii) the Unencumbered Asset Value to be less than $250,000,000 at any time; or (viii) at any time after the Unencumbered Trigger Date, Unsecured Debt Service Coverage to be less than 1.50 to 1.00.

Indebtedness and Cash Flow Covenants. The Borrower on a consolidated basis with its Subsidiaries shall not permit: (i) any Guaranteed Obligations or any Secured Indebtedness of any member of the Consolidated Group which is also Recourse Indebtedness The Leverage Ratio to exist, exceed (A) prior to the issuance of Borrower’s financial results for the quarter ending December 31, 2011, sixty-seven and one-half percent (67.5%), (B) on the date of such issuance and at any time thereafter prior to achievement the issuance of an Unencumbered Leverage Ratio of 1.50Borrower’s financial results for the quarter ending June 30, which exceeds in the aggregate $50,000,0002012, sixty-five percent (65%), and (BC) on the date of issuance of such June 30, 2012 results and at any time on and after the achievement of an Unencumbered Leverage Ratio of 1.50all times thereafter, which exceeds in the aggregate 10% of Total Asset Valuesixty percent (60%); (ii) at any time prior to achievement of an Unencumbered Leverage Ratio of 1.50, any Unsecured Indebtedness to exist, other than the Obligations under this Agreement and up to $200,000,000 in the aggregate of other Unsecured Indebtedness; (iii) the Unencumbered Leverage The Fixed Charge Coverage Ratio to be less than (A) 1.10, at any time prior to the Unencumbered Trigger Dateissuance of Borrower’s financial results for the quarter ending December 31, 2011, 1.40 to 1.00, (B) 1.50, on the Unencumbered Trigger Date date of such issuance and at any time subsequent all times prior to the Unencumbered Trigger Date through and including issuance of Borrower’s financial results for the quarter ending December 31, 20092012, 1.45 to 1.00, and (C) 1.60, at any time subsequent to on the date of issuance of such December 31, 20092012 results and at all times thereafter, 1.50 to 1.00; (iii) The aggregate amount, without duplication, of (A) all Unsecured Indebtedness of the Borrower or of any of its Subsidiaries, (B) all Guarantee Obligations of the Borrower or of any of its Subsidiaries, (C) all Recourse - 67 - Indebtedness of the Borrower or of any of its Subsidiaries (excluding for purposes of each of clauses (A), (B) and (C) of this Section 6.21(iii) all Indebtedness and Guarantee Obligations owing to the Lenders from time to time pursuant this Agreement) to exceed $100,000,000; (iv) Adjusted Annual EBITDA the Collateral Pool Leverage Ratio to be less than 1.50 times Fixed Charges exceed (A) prior to the issuance of Borrower’s financial results for the quarter ending March 31, 2012, sixty-five percent (65%) or (B) at any timetime thereafter, sixty percent (60%) provided that no breach of this Section 6.21(iv) shall occur unless and until Borrower has failed to make the principal payments required to restore compliance with this covenant as provided in Section 2.8(b); (v) Secured Indebtedness to be (A) more than 0.50 times Total Asset Value at any time through and including the Unencumbered Trigger Date, or (B) more than 0.40 times Total Asset Value at any time subsequent to the Unencumbered Trigger Date; (vi) Consolidated Outstanding Indebtedness to be more than 0.60 times Total Asset Value at any time; (vii) the Unencumbered Asset Value to be less than $250,000,000 at any time; or (viii) at any time after the Unencumbered Trigger Date, Unsecured Collateral Pool Debt Service Coverage to be less than (A) prior to issuance of Borrower’s financial results for the quarter ending March 31, 2012, 1.50 to 1.00 or (B) at any time thereafter, 1.60 to 1.00, provided that no breach of this Section 6.21(v) shall occur unless and until Borrower has failed to make the principal payments required to restore compliance with this covenant as provided in Section 2.8(b); or (vi) the Collateral Pool Value to be less than $350,000,000, or there to be fewer than ten (10) Qualifying Collateral Pool Properties, at any time. The foregoing covenants shall be deemed to have replaced the corresponding provisions of Section 6.21 of the Original Credit Agreement as of December 31, 2010 and for the period from such date through the Agreement Effective Date for purposes of determining Borrower’s compliance under the Original Credit Agreement as of December 31, 2010 and thereafter through the Agreement Effective Date.