OF A
PARTICULAR DATE AND CALCULATED ON A CONSOLIDATED BASIS: (1) ALL AMOUNTS WHICH
WOULD BE INCLUDED UNDER CAPITAL (OR ANY LIKE CAPTION) ON A CONSOLIDATED BALANCE
SHEET OF ANY PERSON(S) AT SUCH DATE, DETERMINED IN ACCORDANCE WITH GAAP, LESS
(2) (I) AMOUNTS OWING TO SUCH PERSON(S) FROM ANY AFFILIATES THEREOF, OR FROM
OFFICERS, EMPLOYEES, PARTNERS, MEMBERS, DIRECTORS, SHAREHOLDERS OR OTHER PERSONS
SIMILARLY AFFILIATED WITH SUCH PERSON(S) OR THEIR RESPECTIVE AFFILIATES,
(II) INTANGIBLE ASSETS (OTHER THAN INTEREST RATE PROTECTION AGREEMENTS
SPECIFICALLY RELATED TO THE COLLATERAL), (III) PREPAID TAXES AND/OR EXPENSES AND
(IV) THE VALUE OF ANY COLLATERAL WHICH, AFTER ITS CLOSING DATE, BECOMES AN REO
PROPERTY.
(V)
"TOTAL ASSETS" SHALL MEAN, AT ANY TIME, AN
AMOUNT EQUAL TO THE AGGREGATE BOOK VALUE OF ALL ASSETS OWNED BY ANY PERSON(S),
DETERMINED ON A NON-CONSOLIDATED BASIS.
(W)
"TOTAL INDEBTEDNESS" SHALL MEAN, AT ANY TIME,
WITHOUT DUPLICATION, ALL INDEBTEDNESS AND CONTINGENT LIABILITIES OF ANY PERSON
AND ALL SUBSIDIARIES THEREOF,
DETERMINED ON A NON-CONSOLIDATED BASIS.
(X)
"TOTAL LIABILITIES RATIO" SHALL MEAN, AS
TO ANY PERSON, THE RATIO OF (A) THE TOTAL INDEBTEDNESS OF SUCH PERSON TO (B) THE
TOTAL ASSETS OF SUCH PERSON.
(Y)
"TRUST PREFERRED SECURITIES" SHALL MEAN
INSTRUMENTS THAT ENTITLE THE HOLDERS THEREOF TO RECEIVE PAYMENTS THAT DEPEND
(EXCEPT FOR RIGHTS OR OTHER ASSETS DESIGNED TO ASSURE THE SERVICING OR TIMELY
DISTRIBUTION OF PROCEEDS TO HOLDERS THEREOF) ON THE CASH FLOW FROM THE POOL OF
TRUST SECURITIES ISSUED BY A WHOLLY-OWNED SUBSIDIARY OF A U.S. FINANCIAL
INSTITUTION OR AN INSURANCE HOLDING COMPANY WHICH USES THE PROCEEDS OF SUCH
ISSUANCE TO PURCHASE A PORTFOLIO OF DEBT SECURITIES ISSUED BY ITS PARENT.
THEY
GENERALLY HAVE THE FOLLOWING CHARACTERISTICS:
(I) THE TRUST SECURITIES ARE
NON-AMORTIZING PREFERRED STOCK SECURITIES; (II) THE TRUST SECURITIES HAVE A
30-YEAR MATURITY WITH A 5- OR 10-YEAR NON-CALL PERIOD; AND (III) THE TRUST
SECURITIES ARE SUBORDINATED DEBT.
2.
GUARANTEE OF PAYMENT AND PERFORMANCE.
(A)
EACH GUARANTOR, JOINTLY AND SEVERALLY,
HEREBY UNCONDITIONALLY AND IRREVOCABLY GUARANTEES TO THE ADMINISTRATIVE AGENT
AND THE LENDERS THE PROMPT AND COMPLETE PAYMENT AND PERFORMANCE BY EACH BORROWER
WHEN DUE (WHETHER AT THE STATED MATURITY, BY ACCELERATION OR OTHERWISE) OF THE
GUARANTEE OBLIGATIONS SUBJECT TO THE LIMITATIONS SET FORTH HEREIN.
(B)
(I) SUBJECT TO CLAUSES (B)(II), (C), (D),
(E), (F), (G) AND (H) BELOW, THE MAXIMUM LIABILITY THE GUARANTORS HEREUNDER AND
UNDER THE CREDIT DOCUMENTS SHALL IN NO EVENT EXCEED THE GREATER OF EITHER (A) AN
AMOUNT EQUAL TO ONE HUNDRED PERCENT OF THE TOTAL CAPITALIZATION (INCLUDING ALL
DEBT AND EQUITY CAPITALIZATION) OF THE BORROWERS OR (B) THE SUM OF (I) TEN
PERCENT (10%) OF THE THEN-CURRENT AGGREGATE UNPAID ALLOCATED REVOLVING LOAN
AMOUNT AND THE ALLOCATED TERM LOAN AMOUNT FOR EACH ITEM OF REVOLVING LOAN
COLLATERAL AND TERM LOAN COLLATERAL THAT CONSISTS OF GKK CRE CDO SECURITIES
RATED AA/AA2 OR HIGHER BY ONE OR MORE OF S&P, FITCH AND MOODY'S AND (II) FORTY
PERCENT (40%) OF THE THEN-CURRENT UNPAID BALANCE OF ALL OF THE LOANS, EXCEPT FOR
THOSE LOANS REFERRED TO IN CLAUSE (B)(I) OF THIS SECTION 2(B).