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 For any period, for the REIT and its Subsidiaries on a consolidated basis (and without double-counting), consolidated Net Income for such period, adjusted by (x) adding thereto (i) to the Borrowerextent actually deducted in determining said consolidated Net Income, Consolidated Interest Expense, minority interest and provision for income taxes for such period (excluding, however, Consolidated 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, and (iii) 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 so long as no cash payments or cash expenses will be associated therewith (whether in the current 6 period or for any future period)) and (B) the same were deducted in determining consolidated Net Income for such period, and (y) subtracting therefrom, to the extent included in determining consolidated Net Income for such period, the Trust amount of non-recurring non-cash gains during such period; provided that Consolidated EBITDA shall be determined without giving effect to any extraordinary gains or losses (including any taxes attributable to any such extraordinary gains or 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 the ordinary course of business. Consolidated EBITDA shall be adjusted to include only the REIT’s or its Subsidiaries’ Equity Percentage of Consolidated EBITDA from any non-Wholly-Owned Subsidiary and their respective Subsidiaries Unconsolidated Affiliate. Consolidated Interest Expense. As of any date of determination and for any applicable period, an amount equal towith respect to REIT and its Subsidiaries, without doubleduplication, total interest expense accruing or paid on Indebtedness of REIT 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 Borrowerdefeasance financing 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 REIT and its Subsidiaries. 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 shall not include capitalized prior to FAS 141-R which do not represent interest funded under 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”construction loan by an interest reserve.

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 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.

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 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).