Exhibit 10.2
GUARANTEE
THIS GUARANTEE is made as of July
29, 2005.
WHEREAS Linens ‘N Things,
Inc., a Delaware corporation (the “Guarantor”), has
agreed to provide National City Bank, Canada Branch (the
“Administrative Agent”) for and on behalf of itself as
agent and the Lenders (as defined below), with its guarantee of the
Obligations (as hereinafter defined) of Linens ‘N Things
Canada Corp. (hereinafter referred to as the
“Borrower”) under that certain credit agreement between
the Administrative Agent, National City Bank, Canada Branch, Bank
of Montreal and the other financial institutions named therein or
as from time to time become lenders thereunder, as lenders (the
“Lenders”), the Borrower and the Guarantor, dated as of
the date hereof (the “Credit Agreement”);
AND WHEREAS the Guarantor has agreed
that if the guarantee is not enforceable, the Guarantor will
indemnify the Administrative Agent and the Lenders or be liable as
primary obligor;
AND WHEREAS terms used in this
Guarantee that are defined herein will have the same meaning as in
the Credit Agreement;
NOW THEREFORE THIS GUARANTEE
WITNESSES that in consideration of the premises and the covenants
and agreements herein contained, the sum of $1.00 now paid by the
Administrative Agent to the Guarantor and other good and valuable
consideration (the receipt and sufficiency of which are hereby
acknowledged), the Guarantor covenants with the Administrative
Agent as follows:
Article 1
GUARANTEE
The Guarantor hereby unconditionally
and irrevocably guarantees payment of all the debts and
liabilities, present or future, direct or indirect, absolute or
contingent, matured or not, at any time owing by Borrower to the
Administrative Agent or the Lenders pursuant to the Loan Documents
(hereinafter collectively referred to as the
“Obligations”).
If any or all of the Obligations are
not duly paid by the Borrower and are not recoverable under Section
1.01 for any reason whatsoever, the Guarantor will, as a separate
and distinct obligation, indemnify and save harmless the
Administrative Agent and the Lenders from and against all losses
resulting from the failure of the Borrower to pay such
Obligations.
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If any or all of the Obligations are
not duly paid by the Borrower and are not recoverable under Section
1.01 or the Administrative Agent or the Lenders is not indemnified
under Section 1.02, in each case, for any reason whatsoever, such
Obligations will, as a separate and distinct obligation, be
recoverable from the Guarantor as if it was the primary
obligor.
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1.04
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Obligations Absolute
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The liability of the Guarantor
hereunder will be absolute and unconditional and will not be
affected by:
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(a)
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any lack of validity or enforceability of any
agreement between the Borrower and the Administrative Agent or the
Lenders;
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(b)
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any impossibility, impracticability, frustration
of purpose, illegality, force majeure or act of
government;
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(c)
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the bankruptcy, winding-up, liquidation,
dissolution or insolvency of the Borrower or any other person or
the amalgamation of or any change in the status, function, control
or ownership of the Borrower, the Guarantor, the Administrative
Agent, the Lenders or any other Person;
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(d)
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any lack or limitation of power, incapacity or
disability on the part of the Borrower or of the directors,
partners or agents thereof or any other irregularity, defect or
informality on the part of the Borrower in its obligations to the
Administrative Agent or the Lenders;
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(e)
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any other law, regulation or other circumstance
that might otherwise constitute a defence available to, or a
discharge of, the Borrower in respect of any or all of the
Obligations.
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Article 2 DEALINGS WITH
BORROWER AND OTHERS
The liability of the Guarantor
hereunder will not be released, discharged, limited or in any way
affected by anything done, suffered or permitted by the
Administrative Agent or the Lenders, in connection with any duties
or liabilities of the Borrower to the Administrative Agent or the
Lenders or any security therefor including any loss of or in
respect of any security received by the Administrative Agent or the
Lenders from the Borrower or others. Without limiting the
generality of the foregoing and without releasing, discharging,
limiting or otherwise affecting in whole or in part the
Guarantor’s liability hereunder, without obtaining the
consent of or giving notice to the Guarantor, the Administrative
Agent or the Lenders may:
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(a)
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discontinue, reduce, increase or otherwise vary
the credit of the Borrower in any manner whatsoever;
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(b)
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make any change in the time, manner or place of
payment under, or in any other term of, any agreement between the
Borrower and the Administrative Agent or the Lenders or the failure
on the part of the Borrower to carry out any of its obligations
under any such agreement;
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(c)
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grant time, renewals, extensions of time,
indulgences, releases and discharges to the Borrower;
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(d)
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take or abstain from taking or enforcing
securities or collateral from the Borrower or from perfecting
securities or collateral of the Borrower;
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(e)
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accept compromises from the Borrower;
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(f)
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apply all money at any time received from the
Borrower or from securities upon such part of the Obligations as
the Administrative Agent or the Lenders may see fit or change any
such application in whole or in part from time to time as the
Administrative Agent or the Lenders may see fit; and
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(g)
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otherwise deal with the Borrower and its
securities and collateral as the Administrative Agent or the
Lenders may see fit.
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2.02
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No Exhaustion of Remedies
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The Administrative Agent or the
Lenders will not be bound or obligated to exhaust its recourse
against the Borrower or other persons or any securities or
collateral it may hold or
