- 2-   Amended and Restated Loan Agreement, the other Financing Agreements, anySwap Agreement or otherwise, whether now existing or hereafter arising,whether arising before, during or after the initial or any renewal term ofthe Third Amended and Restated Loan Agreement or after the commencement ofany case with respect to Borrower or any Obligor under the Bankruptcy Codeor any similar statute (including, without limitation, the payment ofinterest and other amounts, which would accrue and become due but for thecommencement of such case, whether or not such amounts are allowed orallowable in whole or in part in any such case and including loans,interest, fees, charges and expenses related thereto and all otherobligations of Borrower or any Obligor to Lender, any Agent, theirrespective affiliates and such financial institution arising after thecommencement of such case), whether direct or indirect, absolute orcontingent, joint or several, due or not due, primary or secondary,liquidated or unliquidated, secured or unsecured, and however acquired byLender, any Agent, their respective affiliates and such financialinstitution; and  (ii) all expenses (including, without limitation, attorneys’ feesand legal expenses) incurred by Lender, any Agent, their respective affiliatesand such financial institution in connection with the preparation, execution,delivery, recording, administration, collection, liquidation, enforcement anddefense of Borrower’s or any Obligor’s obligations, liabilities andindebtedness as aforesaid, the rights of Lender, any Agent, their respectiveaffiliates and such financial institution in any collateral or under thisGuarantee, all other Financing Agreements or Swap Agreements or in any wayinvolving claims by or against Lender, Agent, their respective affiliates andsuch financial institution directly or indirectly arising out of or related tothe relationships between Borrower, Guarantor or any other Obligor and Lender,any Agent, their respective affiliates and such financial institution, whethersuch expenses are incurred before, during or after the initial or any renewalterm of the Third Amended and Restated Loan Agreement, the other FinancingAgreements or any Swap Agreement or after the commencement of any case withrespect to Borrower or Obligors under the Bankruptcy Code or any similarstatute.     (b) This Guarantee is a guaranty of payment and not of collection. Guarantor agrees thatLender and US Collateral Agent need not attempt to collect any Guaranteed Obligations from Borroweror any other Obligor or to realize upon any collateral, but may require Guarantor to make immediatepayment of all of the Guaranteed Obligations (except under or in connection with any SwapAgreement) to Lender when due, whether by maturity, acceleration or otherwise, or at any timethereafter. Lender may apply any amounts received in respect of the Guaranteed Obligations to anyof the Guaranteed Obligations, in whole or in part (including attorneys’ fees and legal expensesincurred by Lender or US Collateral Agent with respect thereto or otherwise chargeable to Borroweror Obligors) and in such order as Lender may elect.

 

- 3-     (c) Payment by Guarantor shall be made to Lender at the office of Lender from time to time ondemand as Guaranteed Obligations become due. Guarantor shall make all payments to Lender on theGuaranteed Obligations free and clear of, and without deduction or withholding for or on accountof, any setoff, counterclaim, defense, duties, taxes, levies, imposts, fees, deductions,withholding, restrictions or conditions of any kind. One or more successive or concurrent actionsmay be brought hereon against Guarantor either in the same action in which Borrower or any otherObligor is sued or in separate actions. In the event any claim or action, or action on anyjudgment, based on this Guarantee is brought against Guarantor, Guarantor agrees not to deduct,set-off, or seek any counterclaim for or recoup any amounts which are or may be owed by Lender, USCollateral Agent or any other Secured Party to Guarantor.     (d) Notwithstanding anything to the contrary contained herein, the amount of the obligationspayable by Guarantor under this Guarantee shall be the aggregate amount of the GuaranteedObligations unless a court of competent jurisdiction adjudicates Guarantor’s obligations to beinvalid, avoidable or unenforceable for any reason (including, without limitation, because of anyapplicable state or federal law relating to fraudulent conveyances or transfers), in which case theamount of the Guaranteed Obligations payable by Guarantor hereunder shall be limited to the maximumamount that could be guaranteed by Guarantor without rendering such Guarantor’s obligations underthis Guarantee invalid, avoidable or unenforceable under such applicable law.     2. **Waivers and Consents**.     (a) Notice of acceptance of this Guarantee, the making of loans and advances and providingother financial accommodations to Borrower and presentment, demand, protest, notice of protest,notice of nonpayment or default and all other notices to which Borrower or Obligors are entitledare hereby waived by Guarantor.     (b) Guarantor also waives notice of and hereby consents to: (i) any amendment, modification, supplement, extension, renewal, orrestatement of the Third Amended and Restated Loan Agreement and any of theother Financing Agreements, including, without limitation, extensions of timeof payment of or increase or decrease in the amount of any of the GuaranteedObligations, the interest rate, fees, other charges, or any collateral, and theguarantee made herein shall apply to the Third Amended and Restated LoanAgreement and the other Financing Agreements and the Guaranteed Obligations asso amended, modified, supplemented, renewed, restated or extended, increased ordecreased;  (ii) the taking, exchange, surrender and releasing of collateral orguarantees now or at any time held by or available to Lender, US CollateralAgent or any Secured Party for the obligations of Borrower or any Obligor,including, without limitation, the surrender or release by Lender or USCollateral Agent of Guarantor hereunder;

 

- 4- (iii) the exercise of, or refraining from the exercise of, anyrights against Borrower, Guarantor or any other Obligor or any collateral;  (iv) the settlement, compromise or release of, or the waiver of anydefault with respect to, any of the Guaranteed Obligations; and  (v) any financing by Lender of Borrower under Section 364of the Bankruptcy Code or consent to the use of cash collateral by Lender underSection 363 of the Bankruptcy Code.Guarantor agrees that the amount of the Guaranteed Obligations shall not be diminished and theliability of Guarantor hereunder shall not be otherwise impaired or affected by any of theforegoing.     (c) No invalidity, irregularity or unenforceability of all or any part of the GuaranteedObligations shall affect, impair or be a defense to this Guarantee, nor shall any othercircumstance which might otherwise constitute a defense available to or legal or equitabledischarge of Borrower or any Obligor in respect of any of the Guaranteed Obligations, or Guarantorin respect of this Guarantee, affect, impair or be a defense to this Guarantee. Without limitationof the foregoing, the liability of Guarantor hereunder shall not be discharged or impaired in anyrespect by reason of any failure by Lender or US Collateral Agent to perfect or continue perfectionof any lien or security interest in any collateral or any delay by Lender or US Collateral Agent inperfecting any such lien or security interest. As to interest, fees and expenses, whether arisingbefore or after the commencement of any case with respect to Borrower or any Obligor under theBankruptcy Code or any similar statute, Guarantor shall be liable therefor, even if Borrower’s orsuch Obligor’s liability for such amounts does not, or ceases to, exist by operation of law.Guarantor acknowledges that Lender and US Collateral Agent has not made any representations toGuarantor with respect to Borrower, any other Obligor or otherwise in connection with the executionand delivery by Guarantor of this Guarantee and Guarantor is not in any respect relying upon Lenderor US Collateral Agent or any statements by Lender or US Collateral Agent in connection with thisGuarantee.     (d) Unless and until the indefeasible payment and satisfaction in full of all of theGuaranteed Obligations in immediately available funds and the termination of the financingarrangements of Lender with Borrower, Guarantor hereby irrevocably and unconditionally waives andrelinquishes: (i) all statutory, contractual, common law, equitable and all otherclaims against Borrower or any Obligor, any collateral for the GuaranteedObligations or other assets of Borrower or any other Obligor, for subrogation,reimbursement, exoneration, contribution, indemnification, setoff or otherrecourse in respect to sums paid or payable to Lender by Guarantor hereunder;and  (ii) any and all other benefits which Guarantor might otherwisedirectly or indirectly receive or be entitled to receive by reason of anyamounts paid

 

- 5-   by or collected or due from Guarantor, Borrower or any other Obligor uponthe Guaranteed Obligations or realized from their property.     3. **Subordination**. Payment of all amounts now or hereafter owed to Guarantor byBorrower or any other Obligor is hereby subordinated in right of payment to the indefeasiblepayment in full to Lender of the Guaranteed Obligations and all such amounts and any security andguarantees therefor are hereby assigned to US Collateral Agent as security for the GuaranteedObligations.     4. **Acceleration**. Notwithstanding anything to the contrary contained herein or any ofthe terms of any of the other Financing Agreements, the liability of Guarantor for the entireGuaranteed Obligations shall mature and become immediately due and payable (except under or inconnection with a Swap Agreement), even if the liability of Borrower or any other Obligor therefordoes not, upon the occurrence of any act, condition or event which constitutes an Event of Default.     5. **Account Stated**. The books and records of Lender showing the account between Lenderand Borrower shall be admissible in evidence in any action or proceeding against or involvingGuarantor as *prima facie*proof of the items therein set forth, and the monthly statements of Lenderrendered to Borrower, to the extent to which no written objection is made within thirty (30) daysfrom the date of sending thereof to Borrower, shall be deemed conclusively correct and constitutean account stated between Lender and Borrower and be binding on Guarantor.     6. **Termination**. This Guarantee is continuing, unlimited, absolute and unconditional.All Guaranteed Obligations shall be conclusively presumed to have been created in reliance on thisGuarantee. Guarantor shall continue to be liable hereunder until one of Lender’s officers actuallyreceives a written termination notice from Guarantor sent to Lender at its address set forth aboveby certified mail, return receipt requested and thereafter as set forth below. Such noticereceived by Lender from Guarantor shall not constitute a revocation or termination of thisGuarantee as to any other Obligor. Revocation or termination hereof by Guarantor shall not affect,in any manner, the rights of Lender or US Collateral Agent or any obligations or duties ofGuarantor under this Guarantee with respect to (a) Guaranteed Obligations which have been created,contracted, assumed or incurred prior to the receipt by Lender of such written notice of revocationor termination as provided herein, including, without limitation, (i) all amendments, extensions,renewals and modifications of such Guaranteed Obligations (whether or not evidenced by new oradditional agreements, documents or instruments executed on or after such notice of revocation ortermination), (ii) all interest, fees and similar charges accruing or due on and after revocationor termination, and (iii) all attorneys’ fees and legal expenses, costs and other expenses paid orincurred on or after such notice of revocation or termination in attempting to collect or enforceany of the Guaranteed Obligations against Borrower, Guarantor or any other Obligor (whether or notsuit be brought), or (b) Guaranteed Obligations which have been created, contracted, assumed orincurred after the receipt by Lender of such written notice of revocation or termination asprovided herein pursuant to any contract entered into by Lender or any Secured Party prior toreceipt of such notice. The sole effect of such revocation or termination by Guarantor shall be toexclude from this Guarantee the liability of Guarantor for those Guaranteed Obligations arisingafter the date of

 

- 6-receipt by Lender of such written notice which are unrelated to Guaranteed Obligations arisingor transactions entered into prior to such date. Without limiting the foregoing, this Guaranteemay not be terminated and shall continue so long as the Third Amended and Restated Loan Agreementshall be in effect (whether during its original term or any renewal, substitution or extensionthereof).     7. **Reinstatement**. If after receipt of any payment of, or proceeds of collateralapplied to the payment of, any of the Guaranteed Obligations, Lender is required to surrender orreturn such payment or proceeds to any Person for any reason, then the Guaranteed Obligationsintended to be satisfied by such payment or proceeds shall be reinstated and continue and thisGuarantee shall continue in full force and effect as if such payment or proceeds had not beenreceived by Lender. Guarantor shall be liable to pay to Lender, and does indemnify and hold Lenderharmless for the amount of any payments or proceeds surrendered or returned. This Section7 shall remain effective notwithstanding any contrary action which may be taken by Lender inreliance upon such payment or proceeds. This Section 7 shall survive the termination orrevocation of this Guarantee.     8. **Amendments and Waivers**. Neither this Guarantee nor any provision hereof shall beamended, modified, waived or discharged orally or by course of conduct, but only by a writtenagreement signed by an authorized officer of Lender and US Collateral Agent. Lender and USCollateral Agent shall not by any act, delay, omission or otherwise be deemed to have expressly orimpliedly waived any of their respective rights, powers and/or remedies unless such waiver shall bein writing and signed by an authorized officer of Lender and US Collateral Agent. Any such waivershall be enforceable only to the extent specifically set forth therein. A waiver by Lender or USCollateral Agent of any right, power and/or remedy on any one occasion shall not be construed as abar to or waiver of any such right, power and/or remedy which Lender or US Collateral Agent wouldotherwise have on any future occasion, whether similar in kind or otherwise.     9. **Corporate Existence, Power and Authority**. Guarantor is a corporation dulyorganized and in good standing under the laws of its state or other jurisdiction of incorporationand is duly qualified as a foreign corporation and in good standing in all states or otherjurisdictions where the nature and extent of the business transacted by it or the ownership ofassets makes such qualification necessary, except for those jurisdictions in which the failure toso qualify would not have a material adverse effect on the financial condition, results ofoperation or businesses of Guarantor or the rights of Lender or US Collateral Agent hereunder orunder any of the other Financing Agreements. The execution, delivery and performance of thisGuarantee is within the corporate powers of Guarantor, have been duly authorized and are not incontravention of law or the terms of the certificates of incorporation, by laws, or otherorganizational documentation of Guarantor, or any indenture, agreement or undertaking to whichGuarantor is a party or by which Guarantor or its property are bound. This Guarantee constitutesthe legal, valid and binding obligation of Guarantor enforceable in accordance with its terms.     10. **Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver**.     (a) The validity, interpretation and enforcement of this Guarantee and any dispute arising outof the relationship between Guarantor, Lender and US Collateral Agent, whether in

 

- 7-contract, tort, equity or otherwise, shall be governed by the internal laws of the State ofIllinois but excluding any principles of conflicts of law or other rule of law that would result inthe application of the law of any jurisdiction other than the laws of the State of Illinois.     (b) Guarantor hereby irrevocably consents and submits to the non-exclusive jurisdiction of theCircuit Court of Cook County, Illinois and the United States District Court for the NorthernDistrict of Illinois whichever Lender or US Collateral Agent elects and waives any objection basedon venue or *forum non conveniens*with respect to any action instituted therein arising under thisGuarantee or any of the other Financing Agreements or in any way connected with or related orincidental to the dealings of Guarantor, Lender and US Collateral Agent in respect of thisGuarantee or any of the other Financing Agreements or the transactions related hereto or thereto,in each case whether now existing or hereafter arising and whether in contract, tort, equity orotherwise, and agrees that any dispute arising out of the relationship between Guarantor, Borrower,Obligors, Lender or US Collateral Agent or the conduct of any such persons in connection with thisGuarantee, the other Financing Agreements or otherwise shall be heard only in the courts describedabove (except that Lender and US Collateral Agent shall have the right to bring any action orproceeding against Guarantor or its property in the courts of any other jurisdiction which Lenderor US Collateral Agent deems necessary or appropriate in order to realize on collateral at any timegranted by Borrower, Obligors or Guarantor to Lender or US Collateral Agent or to otherwise enforcetheir respective rights against Guarantor or its property).     (c) Guarantor hereby waives personal service of any and all process upon it and consents thatall such service of process may be made by certified mail (return receipt requested) directed toits address set forth above and service so made shall be deemed to be completed five (5) days afterthe same shall have been so deposited in the U.S. mails, or, at Lender’s or US Collateral Agent’soption, by service upon Guarantor in any other manner provided under the rules of any such courts.Within thirty (30) days after such service, Guarantor so served shall appear in answer to suchprocess, failing which Guarantor shall be deemed in default and judgment may be entered by Lenderor US Collateral Agent against Guarantor for the amount of the claim and other relief requested.     (d) GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSEOF ACTION (i) ARISING UNDER THIS GUARANTEE OR ANY OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANYWAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF ANY OF GUARANTOR, LENDER AND USCOLLATERAL AGENT IN RESPECT OF THIS GUARANTEE OR ANY OF THE OTHER FINANCING AGREEMENTS OR THETRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, ANDWHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY SUCHCLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THATANY OF GUARANTOR, LENDER OR US COLLATERAL AGENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THISGUARANTEE WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR, LENDER AND US COLLATERALAGENT TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

- 8-     (e) Lender and US Collateral Agent shall not have any liability to Guarantor (whether in tort,contract, equity or otherwise) for losses suffered by Guarantor in connection with, arising out of,or in any way related to the transactions or relationships contemplated by this Guarantee, or anyact, omission or event occurring in connection herewith, unless it is determined by a final andnon-appealable judgment or court order binding on Lender and US Collateral Agent that the losseswere the result of acts or omissions of Lender and US Collateral Agent constituting grossnegligence or willful misconduct. In any such litigation, each of Lender and US Collateral Agentshall be entitled to the benefit of the rebuttable presumption that it acted in good faith and withthe exercise of ordinary care in the performance by it of the terms of the Third Amended andRestated Loan Agreement and the other Financing Agreements.     11. **Notices**. All notices, requests and demands hereunder shall be in writing and (a)made to Lender, US Collateral Agent and Guarantor at its address set forth above, or to such otheraddress as a party may designate by written notice to the other in accordance with this provision,and (b) deemed to have been given or made: if delivered in person, immediately upon delivery; if bytelex, telegram, facsimile or pdf transmission, immediately upon sending and upon confirmation ofreceipt; if by nationally recognized overnight courier service with instructions to deliver thenext business day, one (1) business day after sending; and if by certified mail, return receiptrequested, five (5) days after mailing.     12. **Partial Invalidity**. If any provision of this Guarantee is held to be invalid orunenforceable, such invalidity or unenforceability shall not invalidate this Guarantee as a whole,but this Guarantee shall be construed as though it did not contain the particular provision held tobe invalid or unenforceable and the rights and obligations of the parties shall be construed andenforced only to such extent as shall be permitted by applicable law.     13. **Entire Agreement**. This Guarantee represents the entire agreement andunderstanding of this parties concerning the subject matter hereof, and supersedes all other prioragreements, understandings, negotiations and discussions, representations, warranties, commitments,proposals, offers and contracts concerning the subject matter hereof, whether oral or written.     14. **Successors and Assigns**. This Guarantee shall be binding upon Guarantor and itssuccessors and assigns and shall inure to the benefit of Lender, US Collateral Agent and theirrespective successors, endorsees, transferees and assigns. The liquidation, dissolution ortermination of the Guarantor shall not terminate this Guarantee as to such entity or as to anyother Obligors.     15. **Construction**.     (a) All references to the term “**Guarantor**” wherever used herein shall mean Guarantor and itsrespective successors and assigns (including, without limitation, any receiver, trustee orcustodian for Guarantor or any of its respective assets or Guarantor in its capacity as debtor ordebtor-in-possession under the Bankruptcy Code).

 

- 9-     (b) All references to the term “**Lender**”, “**US Collateral Agent**” or “**Secured Party**” whereverused herein shall mean Lender, US Collateral Agent or Secured Party, as applicable, and theirrespective successors and assigns.     (c) All references to the term “**Borrower**” or “**Obligor**” wherever used herein shall meanBorrower or Obligor, as applicable, and their respective successors and assigns (including, withoutlimitation, any receiver, trustee or custodian for Borrower or Obligor or any of its assets orBorrower or Obligor in its capacity as debtor or debtor-in-possession under the Bankruptcy Code).     (d) All references to the term “**Person**” or “**person**” wherever used herein shall mean anyindividual, sole proprietorship, partnership, corporation (including, without limitation, anycorporation which elects subchapter S status under the *Internal Revenue Code of 1986*, as amended),limited liability company, limited liability partnership, business trust, unincorporatedassociation, joint stock corporation, trust, joint venture or other entity or any government or anyagency or instrumentality of political subdivision thereof.     (e) All references to the plural shall also mean the singular and to the singular shall alsomean the plural.     (f) Capitalized terms not otherwise defined herein shall have the meanings given to them inthe Third Amended and Restated Loan Agreement.     (g) US Collateral Agent is acting as agent for and on behalf of the Secured Parties.     16. **Counterparts, etc**. This Guarantee may be executed in any number of counterparts,each of which shall be an original, but all of which taken together shall constitute one and thesame agreement. Delivery of an executed counterpart of this Guarantee by telefacsimile, pdf orother electronic means shall have the same force and effect as the delivery of an original executedcounterpart of this Guarantee. Any party delivering an executed counterpart of this Guarantee bytelefacsimile, pdf or other electronic means shall also deliver an original executed counterpart,but the failure to do so shall not affect the validity, enforceability or binding effect of thisGuarantee.**[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]**

 

- 10-**IN WITNESS WHEREOF**, Guarantor has executed and delivered this Guarantee as of the day and yearfirst above written.      **WINKLER ATLANTIC HOLDINGS LIMITED**