Common use of Limitations on Incurrence of Debt Clause in Contracts

Limitations on Incurrence of Debt. (a) The Issuer will not, and will not permit any Subsidiary to, incur any Debt other than intercompany Debt (representing Debt to which the only parties are the Issuer and any of its Subsidiaries, but only so long as such Debt is held solely by the Issuer and any Subsidiary) that is subordinate in right of payment to the Securities, if, immediately after giving effect to the incurrence of such additional Debt, the aggregate principal amount of all outstanding Debt of the Issuer and its Subsidiaries on a consolidated basis determined in accordance with GAAP is greater than 60% of the sum of (i) Total Assets as of the end of the fiscal quarter covered in the Issuer's most recent quarterly or annual financial statements, as the case may be, most recently required to be delivered to the Holders pursuant to Section 1010, prior to the incurrence of such additional Debt and (ii) the increase or decrease in Total Assets from the end of such quarter including, without limitation, any increase in Total Assets resulting from the incurrence of such additional Debt (such increase or decrease together with the Total Assets is referred to as the "Adjusted Total Assets"); and (b) The Issuer will not, and will not permit any Subsidiary to, incur any Secured Debt of the Issuer or any Subsidiary if, immediately after giving effect to the incurrence of such additional Secured Debt, the aggregate principal amount of all outstanding Secured Debt of the Issuer and its Subsidiaries on a consolidated basis is greater than 40% of the Adjusted Total Assets; and (c) The Issuer will not, and will not permit any Subsidiary to, incur any Debt other than intercompany Debt that is subordinate in right of payment to the Securities, if the ratio of the Consolidated Income Available for Debt Service to the Annual Debt Service Charge for the period consisting of the four consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred shall have been less than 1.5 to 1 on a pro forma basis after giving effect to the incurrence of such Debt and to the application of the proceeds therefrom, and calculated on the assumption that (i) such Debt and any other Debt incurred by the Issuer or its Subsidiaries since the first day of such four-quarter period, which was outstanding at the end of such period, had been incurred at the beginning of such period and continued to be outstanding throughout such period, and the application of the proceeds of such Debt, including to refinance other Debt, had occurred at the beginning of such period, (ii) the repayment or retirement of any other Debt by the Issuer or its Subsidiaries since the first day of such four-quarter period had been repaid or retired at the beginning of such period (except that, in determining the amount of Debt so repaid or retired, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period), (iii) in the case of Acquired Indebtedness or Debt incurred in connection with any acquisition since the first day of the four-quarter period, the related acquisition had occurred as of the first day of the period with the appropriate adjustments with respect to the acquisition being included in the pro forma calculation, and (iv) in the case of any increase or decrease in Total Assets, or any other acquisition or disposition by the Issuer or any Subsidiary of any asset or group of assets, since the first day of such four-quarter period, including, without limitation, by merger, stock purchase or sale, or asset purchase or sale, such increase, decrease, or other acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments to revenues, expenses and Debt levels with respect to such increase, decrease or other acquisition or disposition being included in such pro forma calculation; and (d) Issuer will at all times maintain Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of all outstanding Unsecured Debt of the Issuer and its Subsidiaries on a consolidated basis.

Limitations on Incurrence of Debt. (ai) The Issuer Company will not, and will not permit any Subsidiary to, incur any Debt other than intercompany Debt (representing Debt to which the only parties are the Issuer and any of its Subsidiaries, but only so long as such Debt is held solely by the Issuer and any Subsidiary) that is subordinate in right of payment to the Securities, if, immediately after giving effect to the incurrence of such additional DebtDebt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Debt of the Issuer Company and its Subsidiaries on a consolidated basis determined in accordance with GAAP is greater than 60% of the sum ("Adjusted Total Assets") of (without duplication) (i) the Total Assets of the Company and its Subsidiaries as of the end of the fiscal calendar quarter covered in the IssuerCompany's most recent quarterly Annual Report on Form 10-K, or annual financial statementsthe Quarterly Report on Form 10-Q, as the case may be, most recently required to be delivered to filed with the Holders pursuant to Section 1010Securities and Exchange Commission (or, if such filing is not permitted under the Securities Exchange Act of 1934, as amended, with the Trustee) prior to the incurrence of such additional Debt and (ii) the increase purchase price of any real estate assets or decrease in Total Assets from mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such quarter includingcalendar quarter, without limitation, any increase including those proceeds obtained in Total Assets resulting from connection with the incurrence of such additional Debt (such increase or decrease together with the Total Assets is referred to as the "Adjusted Total Assets"); andDebt. (bii) The Issuer In addition to the foregoing limitations on the incurrence of Debt, the Company will not, and will not permit any Subsidiary to, incur any Secured Debt of the Issuer or any Subsidiary if, immediately after giving effect to the incurrence of such additional Secured DebtDebt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Secured Debt of the Issuer Company and its Subsidiaries on a consolidated basis is greater than 40% of the Adjusted Total Assets; and. (ciii) The Issuer In addition to the foregoing limitations on the incurrence of Debt, the Company will not, and will not permit any Subsidiary to, incur any Debt other than intercompany Debt that is subordinate in right of payment to the Securities, if the ratio of the Consolidated Income Available for Debt Service to the Annual Debt Service Charge for the period consisting of the four consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred shall have been less than 1.5 to 1 1.5x, on a pro forma basis after giving effect to the incurrence of such Debt thereto and to the application of the proceeds therefrom, and calculated on the assumption that (i) such Debt and any other Debt incurred by the Issuer or Company and its Subsidiaries since the first day of such four-quarter period, which was outstanding at the end of such period, had been incurred at the beginning of such period and continued to be outstanding throughout such period, and the application of the proceeds of such Debttherefrom, including to refinance other Debt, had occurred at the beginning of such period, ; (ii) the repayment or retirement of any other Debt by the Issuer or Company and its Subsidiaries since the first day date of such four-quarter period had been repaid or retired at the beginning of such period (except that, in determining the amount of Debt so repaid or retiredmaking such computation, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period), ; (iii) in the case of Acquired Indebtedness Debt or Debt incurred in connection with any acquisition since the first day of the such four-quarter period, the related acquisition had occurred as of the first day of the such period with the appropriate adjustments with respect to the such acquisition being included in the such pro forma calculation, ; and (iv) in the case of any increase or decrease in Total Assets, or any other acquisition or disposition by the Issuer Company or any Subsidiary its Subsidiaries of any asset or group of assets, assets since the first day of such four-quarter period, including, without limitation, whether by merger, stock purchase or sale, or asset purchase or sale, such increase, decrease, or other acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments to revenues, expenses and Debt levels with respect to such increase, decrease or other acquisition or disposition being included in such pro forma calculation; and (d) Issuer will at all times maintain Total Unencumbered Assets of not less than 150% of . If the aggregate outstanding principal amount of all outstanding Unsecured Debt of giving rise to the Issuer and its Subsidiaries on a consolidated basis.need to make the foregoing calculation or any other Debt incurred after the

Limitations on Incurrence of Debt. (a) The Issuer Kimco will not, and will not permit any Subsidiary of its subsidiaries to, incur any Debt other (as defined below), if, immediately, after giving effect to the incurrence of such additional Debt, the aggregate principal amount of all outstanding Debt of Kimco and its subsidiaries on a consolidated basis determined in accordance with generally accepted accounting principles is greater than intercompany Debt 65% of Total Assets as of the end of the calendar quarter covered in Kimco’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with SEC (representing Debt or, if such filing is not permitted under the Securities Exchange Act of 1934, with the trustee) prior to which the only parties are incurrence of such additional Debt. In addition to the Issuer foregoing limitation, Kimco will not, and will not permit any of its Subsidiariessubsidiaries to, but only so long as such incur any secured Debt is held solely by the Issuer and any Subsidiary) that is subordinate in right of payment to the Securities, if, immediately after giving effect to the incurrence of such additional Debt, the aggregate principal amount of all outstanding Debt of the Issuer Kimco and its Subsidiaries on a consolidated basis determined in accordance with GAAP subsidiaries which is secured is greater than 6040% of the sum of (i) Total Assets as of the end of the fiscal calendar quarter covered in the Issuer's most recent quarterly Kimco’s Annual Report on Form 10-K or annual financial statementsQuarterly Report on Form 10-Q, as the case may be, most recently required to be delivered to filed with SEC (or, if such filing is not permitted under the Holders pursuant to Section 1010Securities Exchange Act of 1934, with the trustee) prior to the incurrence of such additional Debt and (ii) Debt. In addition to the increase or decrease in Total Assets from the end of such quarter including, without limitation, any increase in Total Assets resulting from foregoing limitations on the incurrence of such additional Debt (such increase or decrease together with the Total Assets is referred to as the "Adjusted Total Assets"); and (b) The Issuer Debt, Kimco will not, and will not permit any Subsidiary to, incur any Secured Debt of the Issuer or any Subsidiary if, immediately after giving effect to the incurrence of such additional Secured Debt, the aggregate principal amount of all outstanding Secured Debt of the Issuer and its Subsidiaries on a consolidated basis is greater than 40% of the Adjusted Total Assets; and (c) The Issuer will not, and will not permit any Subsidiary Kimco’s subsidiaries to, incur any Debt other than intercompany Debt that is subordinate in right of payment to the Securities, if the ratio of the Consolidated Income Available for Debt Service to (as defined below) for any 12 consecutive calendar months within the Annual Debt Service Charge for the period consisting of the four consecutive fiscal quarters most recently ended prior to 15 calendar months immediately preceding the date on which such that additional Debt is to be incurred shall have been less than 1.5 to 1 times the Maximum Annual Service Charge (as defined below) on a pro forma basis after giving effect to the incurrence of such Kimco’s Debt and to the application Debt of the proceeds therefrom, and calculated on the assumption that (i) such Debt and any other Debt incurred by the Issuer or its Subsidiaries since the first day all of such four-quarter period, which was outstanding at the end of such period, had been incurred at the beginning of such period and continued Kimco’s subsidiaries to be outstanding throughout such period, and immediately after the application incurring of the proceeds that additional Debt. Maintenance of such Debt, including to refinance other Debt, had occurred at the beginning of such period, (ii) the repayment or retirement of any other Debt by the Issuer or its Subsidiaries since the first day of such four-quarter period had been repaid or retired at the beginning of such period (except that, in determining the amount of Debt so repaid or retired, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period), (iii) in the case of Acquired Indebtedness or Debt incurred in connection with any acquisition since the first day of the four-quarter period, the related acquisition had occurred as of the first day of the period with the appropriate adjustments with respect to the acquisition being included in the pro forma calculation, and (iv) in the case of any increase or decrease in Unencumbered Total Assets, or any other acquisition or disposition by the Issuer or any Subsidiary of any asset or group of assets, since the first day of such four-quarter period, including, without limitation, by merger, stock purchase or sale, or asset purchase or sale, such increase, decrease, or other acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments to revenues, expenses and Debt levels with respect to such increase, decrease or other acquisition or disposition being included in such pro forma calculation; and (d) Issuer Asset Value: Kimco will at all times maintain an Unencumbered Total Unencumbered Assets Asset Value in an amount of not less than one hundred fifty percent (150% %) of the aggregate outstanding principal amount of all Kimco’s outstanding Unsecured Debt and the outstanding Debt of Kimco’s subsidiaries that is unsecured. Restrictions on Dividends and Other Distributions: Kimco will not, in respect of any shares of any class of Kimco’s stock: (1) declare or pay any dividends (other than dividends payable in the Issuer form of Kimco’s stock) on Kimco’s stock; (2) apply any of Kimco’s property or assets to the purchase, redemption or other acquisition or retirement of Kimco’s stock; (3) set apart any sum for the purchase, redemption or other acquisition or retirement of Kimco’s stock; or (4) make any other distribution, by reduction of capital or otherwise; if, immediately after that declaration or other action referred to above, the aggregate of all those declarations and its Subsidiaries other actions since the date on a consolidated basis.which the Kimco Indenture was originally executed shall exceed the sum of:

Limitations on Incurrence of Debt. (a) The Issuer ---------------------------------- Borrower will not, and will not permit any Subsidiary to, incur any Debt other than intercompany Debt (representing Debt if prior to which the only parties are the Issuer and any incurrence of its Subsidiariessuch Debt, but only so long as such Debt is held solely by the Issuer and any Subsidiary) that is subordinate in right of payment to the Securities, if, immediately after giving effect to the incurrence of such additional DebtDebt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Debt of the Issuer Borrower and its Subsidiaries on a consolidated basis determined in accordance with GAAP is greater than 60% of the sum of (i) Total Assets Assets, determined as at the last day of the end of the fiscal quarter covered in the Issuer's most recent quarterly preceding calendar year or annual financial statementscalendar quarter, as the case may be, as reflected in the Financial Statements of the Borrower most recently required to be delivered to the Holders pursuant to Section 1010, prior to the incurrence of such additional Debt and provided under Sections 6.01(a) or (ii) the increase or decrease in Total Assets from the end of such quarter including, without limitation, any increase in Total Assets resulting from the incurrence of such additional Debt (such increase or decrease together with the Total Assets is referred to as the "Adjusted Total Assets"b); and. (b) The Issuer will not, and will not permit any Subsidiary to, incur any Secured Debt of the Issuer or any Subsidiary if, immediately after giving effect to the incurrence of such additional Secured Debt, the aggregate principal amount of all outstanding Secured Debt of the Issuer and its Subsidiaries on a consolidated basis is greater than 40% of the Adjusted Total Assets; and (c) The Issuer Borrower will not, and will not permit any Subsidiary to, incur any Debt other than intercompany Debt that is subordinate in right of payment to the Securities, if the ratio secured by any Lien upon any Property of the Consolidated Income Available for Debt Service to the Annual Debt Service Charge for the period consisting of the four consecutive fiscal quarters most recently ended Borrower or any Subsidiary if, prior to the date on which incurrence of such additional Debt is to be incurred shall have been less than 1.5 to 1 on a pro forma basis Debt, but after giving effect to the incurrence of such Debt and to the application of the proceeds therefrom, and calculated on the assumption that (i) such Debt and any other Debt incurred by the Issuer or its Subsidiaries since the first day of such four-quarter period, which was outstanding at the end of such period, had been incurred at the beginning of such period and continued to be outstanding throughout such period, and the application of the proceeds of such Debt, including to refinance other Debt, had occurred at the beginning of such period, (ii) the repayment or retirement of any other Debt by the Issuer or its Subsidiaries since the first day of such four-quarter period had been repaid or retired at the beginning of such period (except that, in determining the amount of Debt so repaid or retiredthereof, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period), (iii) in the case of Acquired Indebtedness or Debt incurred in connection with any acquisition since the first day of the four-quarter period, the related acquisition had occurred as of the first day of the period with the appropriate adjustments with respect to the acquisition being included in the pro forma calculation, and (iv) in the case of any increase or decrease in Total Assets, or any other acquisition or disposition by the Issuer or any Subsidiary of any asset or group of assets, since the first day of such four-quarter period, including, without limitation, by merger, stock purchase or sale, or asset purchase or sale, such increase, decrease, or other acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments to revenues, expenses and Debt levels with respect to such increase, decrease or other acquisition or disposition being included in such pro forma calculation; and (d) Issuer will at all times maintain Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of all outstanding Unsecured Debt of the Issuer Borrower and its Subsidiaries which is secured by a Lien on Property of the Borrower or any Subsidiary is greater than 40% of Total Assets, determined as at the last day of the most recent preceding calendar year or calendar quarter, as the case may be, as reflected in Financial Statements of the Borrower most recently provided under Sections 6.01(a) or (b). (c) For purposes of this Section 7.02, the term (i) "Total Assets" does not include securities issued or unconditionally guaranteed by the United States government or an agency thereof or by the Federal National Mortgage Association which secure a consolidated basisrepurchase agreement with a financial institution, entered into in the ordinary course of business by the Borrower or any Subsidiary, and (ii) "Debt" does not include obligations under any such repurchase agreement or indebtedness of the Borrower or any Subsidiary owed to a financial institution, which is secured by governmental securities described in clause (i) hereof, owned by the Borrower or such Subsidiary, entered into in the ordinary course of business (a "reverse repurchase agreement"), provided that in the case of transactions described in clauses (i) and (ii) hereof, the market value of such governmental securities is at all times equal at least to the principal amount of such repurchase agreement or reverse repurchase agreement.

Limitations on Incurrence of Debt. Pursuant to Section 901(5) of the Base Indenture, Section 1004 of the Base Indenture is hereby amended and restated in its entirety as follows for the benefit of the Holders of Securities issued on or after the date of this Supplemental Indenture (which covenants shall replace and apply in lieu of the covenants set forth in Section 1004 of the Original Indenture, Section 2.1 of the Second Supplemental Indenture and Section 2.1 of the Seventh Supplemental Indenture), unless otherwise provided in the Officers’ Certificate or supplemental indenture authorizing any series of such Securities: (a) The Issuer Company will not, and will not permit any Subsidiary to, incur any Debt other than intercompany Debt (representing Debt to which the only parties are the Issuer and any of its Subsidiaries, but only so long as such Debt is held solely by the Issuer and any Subsidiary) that is subordinate in right of payment to the Securities, if, immediately after giving effect to the incurrence of such additional DebtDebt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Debt of the Issuer Company and its Subsidiaries on a consolidated basis determined in accordance with GAAP is greater than 60% of the sum of (without duplication) (i) Total Assets as of the end of the fiscal calendar quarter covered in the Issuer's most recent quarterly Company’s Annual Report on Form 10-K or annual financial statementsQuarterly Report on Form 10-Q, as the case may be, most recently required to be delivered to filed with the Holders pursuant to Section 1010Commission (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Debt and (ii) the increase purchase price of any real estate assets or decrease in Total Assets from mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such quarter includingcalendar quarter, without limitation, any increase including those proceeds obtained in Total Assets resulting from connection with the incurrence of such additional Debt (such increase or decrease together with the Total Assets is referred to as the "Adjusted Total Assets"); andDebt. (b) The Issuer will not, and will not permit any Subsidiary to, incur any Secured Debt of the Issuer or any Subsidiary if, immediately after giving effect In addition to the incurrence limitation set forth in subsection (a) of such additional Secured Debtthis Section 1004, the aggregate principal amount of all outstanding Secured Debt of the Issuer and its Subsidiaries on a consolidated basis is greater than 40% of the Adjusted Total Assets; and (c) The Issuer Company will not, and will not permit any Subsidiary to, incur any Debt other than intercompany Debt that is subordinate in right of payment to the Securities, if the ratio of the Consolidated Income Available for Debt Service to the Annual Debt Service Charge for the period consisting of the four consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred shall have been less than 1.5 to 1 1.5, on a pro forma basis after giving effect to the incurrence of such Debt thereto and to the application of the proceeds therefrom, and calculated on the assumption that (i) such Debt and any other Debt incurred by the Issuer or Company and its Subsidiaries since the first day of such four-quarter period, which was outstanding at the end of such period, had been incurred at the beginning of such period and continued to be outstanding throughout such period, and the application of the proceeds of such Debttherefrom, including to refinance other Debt, had occurred at the beginning of such period, ; (ii) the repayment or retirement of any other Debt by the Issuer or Company and its Subsidiaries since the first day of such four-quarter period had been incurred, repaid or retired at the beginning of such period (except that, in determining the amount of Debt so repaid or retiredmaking such computation, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period), ; (iii) in the case of Acquired Indebtedness Debt or Debt incurred in connection with any acquisition since the first day of the such four-quarter period, the related acquisition had occurred as of the first day of the such period with the appropriate adjustments with respect to the such acquisition being included in the such pro forma calculation, ; and (iv) in the case of any increase or decrease in Total Assets, or any other acquisition or disposition by the Issuer Company or any Subsidiary its Subsidiaries of any asset or group of assets, assets since the first day of such four-quarter period, including, without limitation, whether by merger, stock purchase or sale, or asset purchase or sale, such increase, decrease, or other acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments to revenues, expenses and Debt levels with respect to such increase, decrease or other acquisition or disposition being included in such pro forma calculation; and. (dc) Issuer will at all times maintain Total Unencumbered Assets In addition to the limitation set forth in subsections (a) and (b) of not less than 150% of this Section 1004, no Subsidiary may incur any Unsecured Debt; provided, however, that the aggregate outstanding principal amount of all outstanding Company or a Subsidiary may acquire an entity that becomes a Subsidiary that has Unsecured Debt if the incurrence of such Debt (including any guarantees of such Debt assumed by the Issuer Company or any Subsidiary) was not intended to evade the foregoing restrictions and its Subsidiaries on a consolidated basisthe incurrence of such Debt (including any guarantees of such Debt assumed by the Company or any Subsidiary) would otherwise be permitted under this Indenture.

Limitations on Incurrence of Debt. (a) The Issuer Company will not, and will not permit any Subsidiary of its Subsidiaries to, incur Incur any Debt Indebtedness, other than intercompany Debt (representing Debt to which Intercompany Indebtedness and guarantees of Indebtedness Incurred by the only parties are the Issuer and Company or any of its Subsidiaries, but only so long as such Debt is held solely by Subsidiaries in compliance with the Issuer and any Subsidiary) that is subordinate in right of payment to the SecuritiesIndenture, if, immediately after giving effect to the incurrence Incurrence of such additional Debt, Indebtedness and the aggregate principal amount of all outstanding Debt application of the Issuer and its Subsidiaries on a consolidated basis determined in accordance with GAAP is proceeds thereof, Total Outstanding Debt would be greater than 60% of the sum of (i) Total Assets as of the end of the fiscal quarter covered in the Issuer's Company’s annual or quarterly report most recent quarterly recently furnished to Holders of the Notes or annual financial statementsfiled with the SEC, as the case may be, most recently required to be delivered to the Holders pursuant to Section 1010, prior to the incurrence of such additional Debt and (ii) the increase or decrease in Total Assets from the end of such quarter including, without limitation, any increase in Total Assets resulting from the incurrence of such additional Debt (such increase or decrease together with the Total Assets is referred to as the "Adjusted Total Assets"); and. (b) The Issuer Company will not, and will not permit any Subsidiary of its Subsidiaries to, incur Incur any Secured Debt, other than guarantees of Secured Debt of Incurred by the Issuer Company or any Subsidiary of its Subsidiaries in compliance with the Indenture, if, immediately after giving effect to the incurrence Incurrence of such additional Secured DebtDebt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Secured Debt of the Issuer and its Subsidiaries on a consolidated basis is would be greater than 40% of Total Assets as of the Adjusted Total Assets; andend of the fiscal quarter covered in the Company’s annual or quarterly report most recently furnished to Holders of the Notes or filed with the SEC, as the case may be. (c) The Issuer will not, Company and will not permit any Subsidiary to, incur any Debt other than intercompany Debt that is subordinate in right of payment to the Securities, if the ratio of the Consolidated Income Available for Debt Service to the Annual Debt Service Charge for the period consisting of the four consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred shall have been less than 1.5 to 1 on a pro forma basis after giving effect to the incurrence of such Debt and to the application of the proceeds therefrom, and calculated on the assumption that (i) such Debt and any other Debt incurred by the Issuer or its Subsidiaries since the first day of such four-quarter period, which was outstanding at the end of such period, had been incurred at the beginning of such period and continued to be outstanding throughout such period, and the application of the proceeds of such Debt, including to refinance other Debt, had occurred at the beginning of such period, (ii) the repayment or retirement of any other Debt by the Issuer or its Subsidiaries since the first day of such four-quarter period had been repaid or retired at the beginning of such period (except that, in determining the amount of Debt so repaid or retired, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period), (iii) in the case of Acquired Indebtedness or Debt incurred in connection with any acquisition since the first day of the four-quarter period, the related acquisition had occurred as of the first day of the period with the appropriate adjustments with respect to the acquisition being included in the pro forma calculation, and (iv) in the case of any increase or decrease in Total Assets, or any other acquisition or disposition by the Issuer or any Subsidiary of any asset or group of assets, since the first day of such four-quarter period, including, without limitation, by merger, stock purchase or sale, or asset purchase or sale, such increase, decrease, or other acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments to revenues, expenses and Debt levels with respect to such increase, decrease or other acquisition or disposition being included in such pro forma calculation; and (d) Issuer will at all times maintain Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of all outstanding Unsecured Debt Debt. (d) The Company will not, and will not permit any of its Subsidiaries to, Incur any Indebtedness other than Intercompany Indebtedness and guarantees of Indebtedness Incurred by the Company or any of its Subsidiaries in compliance with the Indenture, if the ratio of Consolidated EBITDA to Interest Expense for the most recent quarterly period covered in the Company’s annual or quarterly report most recently furnished to Holders of the Issuer Notes or filed with the SEC, as the case may be and in accordance with Section 6.3 hereof, prior to such time, annualized (i.e., multiplied by four (4)) prior to the date on which such additional Indebtedness is to be Incurred shall have been less than 1.50:1.00 on a pro forma basis after giving effect thereto and to the application of the proceeds therefrom, and calculated on the assumption that: (i) such Indebtedness and any other Indebtedness Incurred by the Company and its Subsidiaries on a consolidated basissince the first day of such quarterly period and the application of the proceeds therefrom, including to refinance other Indebtedness, had occurred at the beginning of such period; (ii) the repayment or retirement of any Indebtedness (other than Indebtedness repaid or retired with the proceeds of any other Indebtedness, which repayment or retirement shall be calculated pursuant to the preceding clause (i)) by the Company and its Subsidiaries since the first day of such quarterly period had been repaid or retired at the beginning of such period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during such period); (iii) in the case of Acquired Indebtedness or Indebtedness Incurred in connection with any acquisition since the first day of such quarterly period, the related acquisition had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition being included in such pro forma calculation; and (iv) in the case of any acquisition or disposition of any asset or group of assets or the placement of any assets in service or removal of any assets from service by the Company or any of its Subsidiaries from the first day of such quarterly period to the date of determination, including, without limitation, by merger, or stock or asset purchase or sale, the acquisition, disposition, placement in service or removal from service had occurred as of the first day of such period, with appropriate adjustments to Interest Expense with respect to the acquisition, disposition, placement in service or removal from service being included in that pro forma calculation.