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Exhibit 10.46
GUARANTY
AGREEMENT
This GUARANTY
AGREEMENT (this “
Guaranty ”), dated as of January 18, 2008, is executed and
delivered by WHITEHALL JEWELERS
HOLDINGS, INC. , a Delaware corporation (“ Guarantor
”), in favor of LASALLE BANK NATIONAL ASSOCIATION (“Lasalle”) , as administrative agent and
collateral agent for the below defined Lenders (in such capacity,
together with its successors and assigns, if any, in such capacity,
“ Agent ”), in light of the following:
WHEREAS ,
pursuant to that certain Third Amended and Restated Credit
Agreement dated as of January 20, 2007 (as amended or otherwise
modified or restated from time to time, the " Credit Agreement ") among
Whitehall Jewelers, Inc., a Delaware corporation ("
Borrower "),
various lending institutions party thereto (such lending
institutions, together with their respective successors and
assigns, are collectively referred to as the "
Lenders " and
individually as a " Lender
"), the Collateral Agent, and LaSalle, in its
capacity as administrative agent for the Lenders, the Agents and
the Lenders have agreed to make loans to, and provide other
financial accommodations for the account of, Borrower from time to
time;
WHEREAS ,
Borrower is a wholly-owned Subsidiary of Guarantor and, as such,
Guarantor will benefit by virtue of the financial accommodations
extended to Borrower by the Lender Group (as defined below);
and
WHEREAS , as a
condition to the Lender Group maintaining or further extending the
loans and other financial accommodations to Borrower pursuant to
the Credit Agreement, and in consideration thereof, and in
consideration of any loans or other financial accommodations
heretofore or hereafter extended by the Lender Group to Borrower,
pursuant to the Loan Documents, Guarantor has agreed to guaranty
the Guaranteed Obligations.
NOW, THEREFORE , in consideration of the foregoing, Guarantor hereby
agrees as follows:
1.
Definitions
and Construction .
(a)
Definitions . Capitalized
terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement. The following
terms, as used in this Guaranty, shall have the following
meanings:
“ Agent ” has the meaning
set forth in the preamble to this Guaranty.
“ Borrower ” has the
meaning set forth in the recitals to this Guaranty.
“ Credit
Agreement ” has the meaning set
forth in the recitals to this Guaranty.
“ Guaranteed
Obligations ” means the
Obligations now or hereafter existing under any Loan Document,
whether for principal, interest (including all interest that
accrues after the commencement of any insolvency proceeding
irrespective of whether a claim therefor is allowed
in such case or proceeding),
fees, expenses or otherwise, and any and all expenses (including
reasonable counsel fees and expenses) incurred by the Lender Group
in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, Guaranteed Obligations shall include
all amounts that constitute part of the Guaranteed Obligations and
would be owed by Borrower to Lender Group under any Loan Document
but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar
proceeding involving Borrower or any other guarantor.
“ Guarantor ” has the
meaning set forth in the preamble to this Guaranty.
“ Guaranty ” has the
meaning set forth in the preamble to this Guaranty.
“ Lender
Group ” means, individually and
collectively, each of the Lenders and
Agent.
“ Lenders ” means,
individually and collectively, each of the lenders identified on
the signature pages to the Credit Agreement, and shall include any
other Person made a party to the Credit Agreement in accordance
with the provisions of Section
10.06 thereof (together with their
respective successors and assigns).
“ Record ” means
information that is inscribed on a tangible medium or which is
stored in an electronic or other medium and is retrievable in
perceivable form.
“ Voidable
Transfer ” has the meaning set
forth in Section 9
of this Guaranty.
(b)
Construction . Unless the
context of this Guaranty clearly requires otherwise, references to
the plural include the singular, references to the singular include
the plural, the part includes the whole, the terms
“includes” and “including” are not
limiting, and the term “or” has, except where otherwise
indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,”
“herein,” “hereby,”
“hereunder,” and other similar terms in this Guaranty
refer to this Guaranty as a whole and not to any particular
provision of this Guaranty. Section, subsection, clause, schedule,
and exhibit references herein are to this Guaranty unless otherwise
specified. Any reference in this Guaranty to any agreement,
instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements, thereto and thereof, as
applicable (subject to any restrictions on such alterations,
amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth
herein). Neither this Guaranty nor any uncertainty or ambiguity
herein shall be construed or resolved against the Lender Group or
Borrower, whether under any rule of construction or otherwise. On
the contrary, this Guaranty has been reviewed by all parties and
shall be construed and interpreted according to the ordinary
meaning of the words used so as to accomplish fairly the purposes
and intentions of Guarantor and Agent. Any reference herein to the
satisfaction or payment in full of the Guaranteed Obligations shall
mean the payment in full in cash of all Guaranteed Obligations
other than contingent indemnification Guaranteed Obligations that,
at such time, are allowed by the applicable member of the Lender
Group to remain outstanding and are not required to be repaid or
cash collateralized pursuant to the provisions of the Credit
Agreement and the full and final termination of any commitment to
extend any financial accommodations under the Credit
Agreement and any other Loan
Document. Any reference herein to any Person shall be construed to
include such Person’s successors and assigns. Any requirement
of a writing contained herein shall be satisfied by the
transmission of a Record and any Record transmitted shall
constitute a representation and warranty as to the accuracy and
completeness of the information contained therein. The captions and
headings are for convenience of reference only and shall not affect
the construction of this Guaranty.
2.
Guaranteed
Obligations . Guarantor hereby
irrevocably and unconditionally guaranties to Agent, for the
benefit of the Lender Group, as and for its own debt, until the
final and indefeasible payment in full thereof, in cash, has been
made, (a) the due and punctual payment of the Guaranteed
Obligations, when and as the same shall become due and payable,
whether at maturity, pursuant to a mandatory prepayment
requirement, by acceleration, or otherwise; it being the intent of
Guarantor that the guaranty set forth herein shall be a guaranty of
payment and not a guaranty of collection; and (b) the punctual and
faithful performance, keeping, observance, and fulfillment by
Borrower of all of the agreements, conditions, covenants, and
obligations of Borrower contained in the Credit Agreement and under
each of the other Loan Documents.
3.
Continuing
Guaranty . This Guaranty includes
Guaranteed Obligations arising under successive transactions
continuing, compromising, extending, increasing, modifying,
releasing, or renewing the Guaranteed Obligations, changing the
interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guaranteed Obligations after
prior Guaranteed Obligations have been satisfied in whole or in
part. To the maximum extent permitted by law, Guarantor hereby
waives any right to revoke this Guaranty as to future Guaranteed
Obligations. If such a revocation is effective notwithstanding the
foregoing waiver, Guarantor acknowledges and agrees that (a) no
such revocation shall be effective until written notice thereof has
been received by Agent, (b) no such revocation shall apply to any
Guaranteed Obligations in existence on the date of receipt by Agent
of such written notice (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate,
payment terms, or other terms and conditions thereof), (c) no such
revocation shall apply to any Guaranteed Obligations made or
created after such date to the extent made or created pursuant to a
legally binding commitment of the Lender Group in existence on the
date of such revocation, (d) no payment by Guarantor, Borrower, or
from any other source, prior to the date of Agent’s receipt
of written notice of such revocation shall reduce the maximum
obligation of Guarantor hereunder, and (e) any payment by Borrower
or from any source other than Guarantor subsequent to the date of
such revocation shall first be applied to that portion of the
Guaranteed Obligations as to which the revocation is effective and
which are not, therefore, Guaranteed hereunder, and to the extent
so applied shall not reduce the maximum obligation of Guarantor
hereunder.
4.
Performance
Under this Guaranty . In the
event that Borrower fails to make any payment of any Guaranteed
Obligations, on or prior to the due date thereof, or if Borrower
shall fail to perform, keep, observe, or fulfill any other
obligation referred to in clause
(b) of Section 2 of this Guaranty in
the manner provided in the Credit Agreement or any other Loan
Document, Guarantor immediately shall cause, as applicable, such
payment in respect of the Guaranteed Obligations to be made or such
obligation to be performed, kept, observed, or
fulfilled.
5.
Primary
Obligations . This Guaranty is a
primary and original obligation of Guarantor, is not merely the
creation of a surety relationship, and is an absolute,
unconditional, and continuing guaranty of payment and performance
which shall remain in full force and effect without respect to
future changes in conditions. Guarantor hereby agrees that it is
directly, jointly and severally with any other guarantor of the
Guaranteed Obligations, liable to Agent, for the benefit of the
Lender Group, that the obligations of Guarantor hereunder are
independent of the obligations of Borrower or any other guarantor,
and that a separate action may be brought against Guarantor,
whether such action is brought against Borrower or any other
guarantor or whether Borrower or any other guarantor is joined in
such action. Guarantor hereby agrees that its liability hereunder
shall be immediate and shall not be contingent upon the exercise or
enforcement by any member of the Lender Group of whatever remedies
they may have against Borrower or any other guarantor, or the
enforcement of any lien or realization upon any security by any
member of the Lender Group. Guarantor hereby agrees that any
release which may be given by Agent to Borrower or any other
guarantor, or with respect to any property or asset subject to a
Lien, shall not release Guarantor. Guarantor consents and agrees
that no member of the Lender Group shall be under any obligation to
marshal any property or assets of Borrower or any other guarantor
in favor of Guarantor, or against or in payment of any or all of
the Guaranteed Obligations.
6.
Waivers .
(a)
To the fullest
extent permitted by applicable law, Guarantor hereby waives: (i)
notice of acceptance hereof; (ii) notice of any loans or other
financial accommodations made or extended under the Credit
Agreement, or the creation or existence of any Guaranteed
Obligations; (iii) notice of the amount of the Guaranteed
Obligations, subject, however, to Guarantor’s right to make
inquiry of Agent to ascertain the amount of the Guaranteed
Obligations at any reasonable time; (iv) notice of any adverse
change in the financial condition of Borrower or of any other fact
that might increase Guarantor’s risk hereunder; (v) notice of
presentment for payment, demand, protest, and notice thereof as to
any instrument among the Loan Documents; (vi) notice of any Default
or Event of Default under any of the Loan Documents; and (vii) all
other notices (except if such notice is specifically required to be
given to Guarantor under this Guaranty or any other Loan Documents
to which Guarantor is a party) and demands to which Guarantor might
otherwise be entitled.
(b)
To the fullest
extent permitted by applicable law, Guarantor hereby waives the
right by statute or otherwise to require any member of the Lender
Group, to institute suit against Borrower or any other guarantor or
to exhaust any rights and remedies which any member of the Lender
Group, has or may have against Borrower or any other guarantor. In
this regard, Guarantor agrees that it is bound to the payment of
each and all Guaranteed Obligations, whether now existing or
hereafter arising, as fully as if the Guaranteed Obligations were
directly owing to Agent or the Lender Group, as applicable, by
Guarantor. Guarantor further waives any defense arising by reason
of any disability or other defense (other than the defense that the
Guaranteed Obligations shall have been fully and f
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