16, 2006 BY AND BETWEEN BORROWER AND BANK (AS AMENDED BY THAT
CERTAIN FIRST AMENDMENT AND MODIFICATION TO LOAN AND SECURITY AGREEMENT DATED
AUGUST 25, 2006, THAT CERTAIN SECOND AMENDMENT AND MODIFICATION TO LOAN AND
SECURITY AGREEMENT DATED OCTOBER 31, 2006 AND AS THE SAME MAY BE FURTHER
AMENDED, MODIFIED, SUPPLEMENTED OR RESTATED FROM TIME TO TIME).
1.5
"LOAN DOCUMENTS" MEANS THE LOAN AGREEMENT, EACH OF THE NOTES
REFERENCED THEREIN, THIS SURETY AGREEMENT AND ALL OTHER DOCUMENTS EXECUTED OR
DELIVERED BY BORROWER, GUARANTOR OR ANY OTHER PERSON OR ENTITY IN CONNECTION
WITH THE LOAN AGREEMENT OR THIS SURETY AGREEMENT, OR OTHERWISE EVIDENCING OR
EXECUTED IN CONNECTION WITH THE BANK INDEBTEDNESS, AS ANY OF THE FOREGOING MAY
BE AMENDED, EXTENDED, SUPPLEMENTED OR REPLACED FROM TIME TO TIME.
2.
UNLIMITED GUARANTY.
2.1
UNLIMITED CONTINUING GUARANTY AND SURETYSHIP OBLIGATION.
GUARANTOR GUARANTEES TO BANK AND BECOMES A SURETY TO BANK FOR EACH OF THE
GUARANTEED OBLIGATIONS.
THE LIABILITY OF GUARANTOR HEREUNDER IS UNLIMITED.
THIS SURETY AGREEMENT IS A CONTINUING GUARANTY AND SURETYSHIP AGREEMENT AND
SHALL CONTINUE IN FORCE UNTIL ALL GUARANTEED OBLIGATIONS HAVE BEEN PAID OR
SATISFIED IN FULL AS DETERMINED BY BANK AND BANK HAS NO FURTHER OBLIGATION OR
COMMITMENT TO ADVANCE SUMS OR EXTEND ANY CREDIT FACILITY TO BORROWER AND ALL
SUMS RECEIVED BY BANK IN PAYMENT OF THE BANK INDEBTEDNESS ARE NO LONGER SUBJECT
TO RECISSION OR REPAYMENT.
GUARANTOR EXPRESSLY AGREES THAT BORROWER MAY CREATE
OR INCUR BANK INDEBTEDNESS AND MAY REPAY AND SUBSEQUENTLY CREATE OR INCUR BANK
INDEBTEDNESS, ALL WITHOUT NOTICE TO GUARANTOR, AND GUARANTOR SHALL BE BOUND
THEREBY.
ALL ADVANCES TO AND BORROWINGS OF BORROWER FROM BANK SHALL CONSTITUTE
ONE SINGLE OBLIGATION GUARANTEED BY GUARANTOR PURSUANT TO THE TERMS HEREOF.
2.2
EXERCISE OF BANK'S RIGHTS.
GUARANTOR UNDERSTANDS AND AGREES THAT
(A) BANK MAY, AT ANY TIME FOLLOWING AN EVENT OF DEFAULT, AT ITS DISCRETION,
PROCEED AGAINST GUARANTOR AND/OR ANY SECURITY FOR THIS SURETY AGREEMENT IN SUCH
ORDER AND MANNER AS BANK SHALL DETERMINE IN ITS SOLE DISCRETION; (B) GUARANTOR'S
LIABILITY UNDER THIS SURETY AGREEMENT IS NOT LIMITED TO THE VALUE OR PROCEEDS
REALIZED BY BANK FROM A SALE OR OTHER LIQUIDATION OF ANY COLLATERAL FOR THIS
SURETY AGREEMENT; (C) BANK MAY, AT ANY TIME FOLLOWING AN EVENT OF DEFAULT,
PROCEED AGAINST ANY AND ALL ASSETS OF GUARANTOR TO OBTAIN PAYMENT OF THE
GUARANTEED OBLIGATIONS; AND (D) TO THE EXTENT ANY COLLATERAL FOR THIS SURETY
AGREEMENT SECURES ANY OTHER OBLIGATIONS OF GUARANTOR TO BANK, BANK MAY APPLY
SUCH COLLATERAL AND PROCEEDS THEREOF TO THE GUARANTEED OBLIGATIONS AND/OR SUCH
OTHER OBLIGATIONS IN SUCH ORDER OR MANNER AS BANK SHALL DETERMINE IN ITS SOLE
DISCRETION.
2
3.
SCOPE AND DURATION OF LIABILITY.
3.1
PRIMARY LIABILITY.
THE GUARANTEED OBLIGATIONS ARE PRIMARY,
ABSOLUTE, INDEPENDENT, IRREVOCABLE AND UNCONDITIONAL.
THIS AGREEMENT IS AN
AGREEMENT OF SURETYSHIP AS WELL AS OF GUARANTY AND WITHOUT BEING REQUIRED TO
PROCEED FIRST AGAINST BORROWER OR ANY OTHER PERSON OR ENTITY, OR AGAINST ANY
OTHER SECURITY FOR THE GUARANTEED OBLIGATIONS, BANK MAY PROCEED DIRECTLY AGAINST
GUARANTOR UPON THE OCCURRENCE OF