{"id":41042,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/guarantee-aihl-th-ltd-tommy-hilfiger-corp-and-tommy-hilfiger.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"guarantee-aihl-th-ltd-tommy-hilfiger-corp-and-tommy-hilfiger","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/guarantee-aihl-th-ltd-tommy-hilfiger-corp-and-tommy-hilfiger.html","title":{"rendered":"Guarantee &#8211; AIHL-TH Ltd., Tommy Hilfiger Corp. and Tommy Hilfiger (Eastern Hemisphere) Ltd."},"content":{"rendered":"<pre>\n     GUARANTEE, dated as of June 29, 2001, made by AIHL-TH Limited, a British\nVirgin Islands corporation (the \"GUARANTOR\"), in favor of Tommy Hilfiger\nCorporation, a British Virgin Islands corporation (\"PARENT\"), and Tommy Hilfiger\n(Eastern Hemisphere) Limited, a British Virgin Islands corporation (\"THEH\").\nParent and THEH are individually referred to herein as a \"BUYER PARTY\" and\ntogether as the \"BUYER PARTIES.\"\n\n\n                              W I T N E S S E T H:\n                              --------------------\n\n\n     WHEREAS, TH Europe Holdings Limited, a British Virgin Islands corporation\n(\"SELLER\"), and T.H. International N.V., a corporation organized under the laws\nof the Netherlands Antilles (\"TH INTERNATIONAL\"), are direct or indirect\nsubsidiaries of the Guarantor; and\n\n     WHEREAS, simultaneously with the execution and delivery of this Guarantee,\nthe Buyer Parties will enter into a Stock Purchase Agreement, dated as of the\ndate hereof (as amended from time to time, the \"STOCK PURCHASE AGREEMENT\"), with\nSeller, pursuant to which Seller will sell to THEH, and THEH will purchase from\nSeller, all of the issued and outstanding shares of capital stock of TH\nInternational.\n\n     NOW, THEREFORE, in consideration of the premises herein and to induce the\nBuyer Parties to enter into the Stock Purchase Agreement, the Guarantor hereby\nagrees with the Buyer Parties as follows:\n\n     1. DEFINED TERMS. Unless otherwise defined herein, terms which are defined\nin the Stock Purchase Agreement and used herein are so used as so defined.\n\n     2. GUARANTEE. The Guarantor hereby unconditionally and irrevocably\nguarantees to the Buyer Parties the prompt and complete payment and performance\nof all obligations of the Seller in the Stock Purchase Agreement. The Guarantor\nfurther agrees to pay any and all reasonable expenses (including, without\nlimitation, all fees and disbursements of counsel) which may be paid or incurred\nby the Buyer Parties in enforcing any of their rights under this Guarantee.\n\n     No payment or payments made by the Seller or any other person or received\nor collected by any Buyer Party from the Seller or any other Person by virtue of\nany action or proceeding or any set-off or appropriation or application, at any\ntime or from time to time, in reduction of or in payment of the obligations\nguaranteed hereunder shall be deemed to modify, reduce, release or otherwise\naffect the liability of the Guarantor hereunder which shall, notwithstanding any\nsuch payment or payments, remain liable hereunder.\n\n     3. NO SUBROGATION, CONTRIBUTION, REIMBURSEMENT OR INDEMNITY.\nNotwithstanding anything to the contrary in this Guarantee, the Guarantor hereby\nirrevocably waives all rights which may have arisen in connection with this\nGuarantee to be subrogated to any of the rights of any Buyer Party against the\nSeller for the payment of the obligations guaranteed hereunder. The Guarantor\nhereby further irrevocably waives all contractual, common law, statutory or\nother rights of reimbursement, contribution, exoneration or indemnity (or any\nsimilar right) from or against the Seller or any other Person which may have\narisen in connection with this Guarantee.\n\n\n\n\n\n     4. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. The Guarantor shall\nremain obligated hereunder notwithstanding that, without any reservation of\nrights against the Guarantor, and without notice to or further assent by the\nGuarantor, any demand for payment of any of the obligations made by any Buyer\nParty may be rescinded by such Buyer Party, and any of the obligations\nguaranteed hereunder continued, and the obligations guaranteed hereunder, or the\nliability of any other party upon or for any part thereof, or guarantee therefor\nor right of offset with respect thereto, may, from time to time, in whole or in\npart, be renewed, extended, amended, modified, accelerated, compromised, waived,\nsurrendered or released by the Buyer Parties, and the Stock Purchase Agreement\nmay be amended, modified, supplemented or terminated, in whole or in part, as\nthe Buyer Parties may deem advisable from time to time, and any guarantee or\nright of offset at any time held by the Buyer Parties for the payment of the\nobligations guaranteed hereunder may be sold, exchanged, waived, surrendered or\nreleased.\n\n     5. GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Guarantor waives any and all\nnotice of the creation, renewal, extension or accrual of any of the obligations\nguaranteed hereunder and notice of or proof of reliance by any Buyer Party upon\nthis Guarantee or acceptance of this Guarantee; the obligations guaranteed\nhereunder, and any of them, shall conclusively be deemed to have been created,\ncontracted or incurred in reliance upon this Guarantee; and all dealings between\nthe Seller or the Guarantor, on the one hand, and the Buyer Parties, on the\nother, shall likewise be conclusively presumed to have been had or consummated\nin reliance upon this Guarantee. The Guarantor waives diligence, presentment,\nprotest, demand for payment and notice of nonpayment to or upon the Seller or\nthe Guarantor with respect to the obligations guaranteed hereunder. This\nGuarantee shall be construed as a continuing, absolute and unconditional\nguarantee of payment without regard to (a) the validity or enforceability of the\nStock Purchase Agreement or any documents delivered pursuant thereto, any of the\nobligations guaranteed hereunder or any guarantee or right of offset with\nrespect thereto at any time or from time to time held by the Buyer Parties, (b)\nany defense, set-off or counterclaim (other than a defense of payment or\nperformance) which may at any time be available to or be asserted by the Seller\nagainst any of the Buyer Parties, or (c) any other circumstance whatsoever (with\nor without notice to or knowledge of the Seller or the Guarantor) which\nconstitutes, or might be construed to constitute, an equitable or legal\ndischarge of the Seller for the obligations guaranteed hereunder, or of the\nGuarantor under this Guarantee, in bankruptcy or in any other instance. When\npursuing their rights and remedies hereunder against the Guarantor, the Buyer\nParties may, but shall be under no obligation to, pursue such rights and\nremedies as they may have against the Seller or any other Person or against any\nguarantee for the obligations guaranteed hereunder or any right to offset with\nrespect thereto, and any failure by the Buyer Parties to pursue such other\nrights or remedies or to collect any payments from the Seller or any such other\nPerson or to realize upon any such guarantee or to exercise any such right of\noffset, or any release of the Seller or any such other Person or any such\nguarantee or right of offset, shall not relieve the Guarantor of any liability\nhereunder, and shall not impair or affect the rights and remedies, whether\nexpress, implied or available as a matter of law, of any Buyer Party against the\nGuarantor.\n\n     6. REINSTATEMENT. This Guarantee shall continue to be effective, or be\nreinstated, as the case may be, if at any time payment, or any part thereof, of\nany of the obligations guaranteed is rescinded or must otherwise be restored or\nreturned by any Buyer Party upon the insolvency, bankruptcy, dissolution,\nliquidation or reorganization of the Seller or upon \n\n\n\n\n                                      -2-\n\n\n\n\n\nor as a result of the appointment of a receiver, intervenor or conservator of,\nor trustee or similar officer for, the Seller or any substantial part of its\nproperty, or otherwise, all as though such payments had not been made.\n\n     7. PAYMENTS. The Guarantor hereby agrees that the obligations will be paid\nto the Buyer Parties without set-off or counterclaim in United States Dollars to\nan account designated by Parent.\n\n     8. LIMITATION ON GUARANTEE. Notwithstanding anything herein to the\ncontrary, the Guarantor shall not be required to make payments under this\nGuarantee in excess of $200,000,000.\n\n     9. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and warrants\nthat:\n\n          (a)  the Guarantor is a corporation duly incorporated under the laws\n               of the British Virgin Islands and has the corporate power and\n               authority and the legal right to own and operate its property, to\n               lease the property it operates and to conduct the business in\n               which it is currently engaged;\n\n          (b)  the Guarantor has full power and authority to enter into and\n               perform this Guarantee, which has been duly authorized by all\n               necessary corporate action;\n\n          (c)  this Guarantee constitutes a valid and legally binding obligation\n               of the Guarantor enforceable against the Guarantor in accordance\n               with its terms; and\n\n          (d)  the execution and delivery of this Guarantee by Guarantor (i)\n               will not violate or require any consent, approval, filing or\n               notice under any provision of any law, rule, statute or\n               regulation or order, judgment, writ, injunction or decree of any\n               court or Governmental Authority applicable to the Guarantor, and\n               (ii) will not conflict with, or result in the breach or\n               termination of any provision of, or constitute a default under,\n               or result in the acceleration of the performance of the\n               obligations of the Guarantor under, or result in the creation of\n               a lien, pledge, security interest, charge or encumbrance upon any\n               of the properties or assets of the Guarantor pursuant to, the\n               organizational and governing documents of Guarantor, or any\n               indenture, mortgage, deed of trust, lease, contract, instrument\n               or other agreement to which Guarantor is a party or by which\n               Guarantor or any of its properties or assets is bound.\n\n     10. SEVERABILITY. Any provision of this Guarantee which is prohibited or\nunenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective\nto the extent of such prohibition or unenforceability without invalidating the\nremaining provisions hereof, and any such prohibition or unenforceability in any\njurisdiction shall not invalidate or render unenforceable such provision in any\nother jurisdiction.\n\n     11. NO WAIVER; CUMULATIVE REMEDIES. No Buyer Party shall by any act (except\nby a written instrument pursuant to Section 12 hereof), delay, indulgence,\nomission or\n\n\n\n\n                                      -3-\n\n\n\n\n\notherwise be deemed to have waived any right or remedy hereunder or any breach\nof any of the terms and conditions hereof. No failure to exercise, nor any delay\nin exercising, on the part of any Buyer Party, any right, power or privilege\nhereunder shall operate as a waiver thereof. No single or partial exercise of\nany right, power or privilege hereunder shall preclude any other or further\nexercise thereof or the exercise of any other right, power or privilege. A\nwaiver by any Buyer Party of any right or remedy hereunder on any one occasion\nshall not be construed as a bar to any right or remedy which such Buyer Party\nwould otherwise have on any future occasion. The rights and remedies herein\nprovided are cumulative, may be exercised singly or concurrently and are not\nexclusive of any rights or remedies provided by law.\n\n     12. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS. None of the terms or\nprovisions of this Guarantee may be waived, amended, supplemented or otherwise\nmodified except by a written instrument executed by the Guarantor and the Buyer\nParties, PROVIDED that any provision of this Guarantee may be waived by the\nBuyer Parties in a letter or agreement executed by the Buyer Parties or by telex\nor facsimile transmission from the Buyer Parties to Guarantor. Guarantor may\nassign its obligations hereunder (whether by operation of law or otherwise) only\nwith the consent of Parent, which consent shall not be unreasonably withheld.\nThis Guarantee shall be binding upon the successors and assigns of the Guarantor\nand shall inure to the benefit of the Buyer Parties and their respective\nsuccessors and assigns.\n\n     13. NOTICES. Notices by the Buyer Parties to the Guarantor given hereunder\nshall be in writing and shall be deemed given when delivered personally, mailed\nby registered mail, return receipt requested, sent by documented overnight\ndelivery service or, to the extent receipt is confirmed, by telecopy, telefax or\nother electronic transmission service to the Guarantor at the following address:\n\n                  AIHL-TH Limited\n                  c\/o Novel Enterprises Limited\n                  12\/F, Novel Industrial Building\n                  850-870 Lai Chi Kok Road\n                  Cheung Sha Wan, Kowloon\n                  Hong Kong\n                  Attn:  Lawrence Lok\n                  Telecopier No.:  852-2310-1841\n\n                  with a copy to :\n\n                  Simpson Thacher &amp; Bartlett\n                  Citypoint\n                  1 Ropemaker Street\n                  London EC2Y 9HU\n                  England\n                  Attn:   William R. Dougherty, Esq.\n                  Telecopier No.:   44-20-7275-6502\n\nThe Guarantor may change its address and transmission number by written notice\nto Parent.\n\n\n\n\n                                      -4-\n\n\n\n\n\n     14. GOVERNING LAW. This Guarantee and all disputes, controversies or claims\narising out of or related to this Guarantee or a breach hereof shall be governed\nin all respects, including validity, interpretation and effect, by the laws of\nthe State of New York as applied to contracts to be performed in New York.\n\n     15. JURISDICTION; WAIVER OF TRIAL BY JURY. Guarantor hereby consents to the\njurisdiction of the United States District Court for the Southern District of\nNew York and any of the courts of the state of New York in any dispute arising\nunder this Guarantee and agrees further that service of process or notice in any\nsuch action, suit or proceeding shall be effective if in writing and delivered\nin person or sent as provided in Section 13 hereof. ANY RIGHT TO TRIAL BY JURY\nWITH RESPECT TO ANY CLAIM OR ACTION ARISING OUT OF THIS GUARANTEE OR IN\nCONNECTION HEREWITH IS HEREBY WAIVED.\n\n\n\n\n\n\n\n\n\n\n\n                                      -5-\n\n\n\n\n\n     IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly\nexecuted and delivered as of the date first above written.\n\n                                    AIHL-TH LIMITED\n\n\n\n                                    By:  \/s\/ Silas K.F. Chou\n                                         -------------------------------\n                                         Name:  Silas K.F. Chou\n                                         Title: Co-Chairman of the Board\n\n\n\n\n\n\n\n\n\n\n\n                                      -6-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7775],"corporate_contracts_industries":[9396],"corporate_contracts_types":[9560,9565],"class_list":["post-41042","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-hilfiger-tommy-corp","corporate_contracts_industries-consumer__clothing","corporate_contracts_types-finance","corporate_contracts_types-finance__guaranty"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41042","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41042"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41042"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41042"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41042"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}