Exhibit 10.2
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GUARANTEE, dated as of June 29, 2001, made by AIHL-TH Limited, a British
Virgin Islands corporation (the "GUARANTOR"), in favor of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Corporation, a British Virgin Islands corporation ("PARENT"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(Eastern Hemisphere) Limited, a British Virgin Islands corporation ("THEH").
Parent and THEH are individually referred to herein as a "BUYER PARTY" and
together as the "BUYER PARTIES."
W I T N E S S E T H:
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WHEREAS, TH Europe Holdings Limited, a British Virgin Islands corporation
("SELLER"), and T.H. International N.V., a corporation organized under the laws
of the Netherlands Antilles ("TH INTERNATIONAL"), are direct or indirect
subsidiaries of the Guarantor; and
WHEREAS, simultaneously with the execution and delivery of this Guarantee,
the Buyer Parties will enter into a Stock Purchase Agreement, dated as of the
date hereof (as amended from time to time, the "STOCK PURCHASE AGREEMENT"), with
Seller, pursuant to which Seller will sell to THEH, and THEH will purchase from
Seller, all of the issued and outstanding shares of capital stock of TH
International.
NOW, THEREFORE, in consideration of the premises herein and to induce the
Buyer Parties to enter into the Stock Purchase Agreement, the Guarantor hereby
agrees with the Buyer Parties as follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms which are defined
in the Stock Purchase Agreement and used herein are so used as so defined.
2. GUARANTEE. The Guarantor hereby unconditionally and irrevocably
guarantees to the Buyer Parties the prompt and complete payment and performance
of all obligations of the Seller in the Stock Purchase Agreement. The Guarantor
further agrees to pay any and all reasonable expenses (including, without
limitation, all fees and disbursements of counsel) which may be paid or incurred
by the Buyer Parties in enforcing any of their rights under this Guarantee.
No payment or payments made by the Seller or any other person or received
or collected by any Buyer Party from the Seller or any other Person by virtue of
any action or proceeding or any set-off or appropriation or application, at any
time or from time to time, in reduction of or in payment of the obligations
guaranteed hereunder shall be deemed to modify, reduce, release or otherwise
affect the liability of the Guarantor hereunder which shall, notwithstanding any
such payment or payments, remain liable hereunder.
3. NO SUBROGATION, CONTRIBUTION, REIMBURSEMENT OR INDEMNITY.
Notwithstanding anything to the contrary in this Guarantee, the Guarantor hereby
irrevocably waives all rights which may have arisen in connection with this
Guarantee to be subrogated to any of the rights of any Buyer Party against the
Seller for the payment of the obligations guaranteed hereunder. The Guarantor
hereby further irrevocably waives all contractual, common law, statutory or
other rights of reimbursement, contribution, exoneration or indemnity (or any
similar right) from or against the Seller or any other Person which may have
arisen in connection with this Guarantee.
4. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. The Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of
rights against the Guarantor, and without notice to or further assent by the
Guarantor, any demand for payment of any of the obligations made by any Buyer
Party may be rescinded by such Buyer Party, and any of the obligations
guaranteed hereunder continued, and the obligations guaranteed hereunder, or the
liability of any other party upon or for any part thereof, or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Buyer Parties, and the Stock Purchase Agreement
may be amended, modified, supplemented or terminated, in whole or in part, as
the Buyer Parties may deem advisable from time to time, and any guarantee or
right of offset at any time held by the Buyer Parties for the payment of the
obligations guaranteed hereunder may be sold, exchanged, waived, surrendered or
released.
5. GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the obligations
guaranteed hereunder and notice of or proof of reliance by any Buyer Party upon
this Guarantee or acceptance of this Guarantee; the obligations guaranteed
hereunder, and any of them, shall conclusively be deemed to have been created,
contracted or incurred in reliance upon this Guarantee; and all dealings between
the Seller or the Guarantor, on the one hand, and the Buyer Parties, on the
other, shall likewise be conclusively presumed to have been had or consummated
in reliance upon this Guarantee. The Guarantor waives diligence, presentment,
protest, demand for payment and notice of nonpayment to or upon the Seller or
the Guarantor with respect to the obligations guaranteed hereunder. This
Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Stock Purchase Agreement or any documents delivered pursuant thereto, any of the
obligations guaranteed hereunder or any guarantee or right of offset with
respect thereto at any time or from time to time held by the Buyer Parties, (b)
any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the Seller
against any of the Buyer Parties, or (c) any other circumstance whatsoever (with
or without notice to or knowledge of the Seller or the Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Seller for the obligations guaranteed hereunder, or of the
Guarantor under this Guarantee, in bankruptcy or in any other instance. When
pursuing their rights and remedies hereunder against the Guarantor, the Buyer
Parties may, but shall be under no obligation to, pursue such rights and
remedies as they may have against the Seller or any other Person or against any
guarantee for the obligations guaranteed hereunder or any right to offset with
respect thereto, and any failure by the Buyer Parties to pursue such other
rights or remedies or to collect any payments from the Seller or any such other
Person or to realize upon any such guarantee or to exercise any such right of
offset, or any release of the Seller or any such other Person or any such
guarantee or right of offset, shall not relieve the Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of any Buyer Party against the
Guarantor.
6. REINSTATEMENT. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the obligations guaranteed is rescinded or must otherwise be restored or
returned by any Buyer Party upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Seller or upon
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or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the Seller or any substantial part of its
property, or otherwise, all as though such payments had not been made.
7. PAYMENTS. The Guarantor hereby agrees that the obligations will be paid
to the Buyer Parties without set-off or counterclaim in United States Dollars to
an account designated by Parent.
8. LIMITATION ON GUARANTEE. Notwithstanding anything herein to the
contrary, the Guarantor shall not be required to make payments under this
Guarantee in excess of $200,000,000.
9. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and warrants
that:
(a) the Guarantor is a corporation duly incorporated under the laws
of the British Virgin Islands and has the corporate power and
authority and the legal right to own and operate its property, to
lease the property it operates and to conduct the business in
which it is currently engaged;
(b) the Guarantor has full power and authority to enter into and
perform this Guarantee, which has been duly authorized by all
necessary corporate action;
(c) this Guarantee constitutes a valid and legally binding obligation
of the Guarantor enforceable against the Guarantor in accordance
with its terms; and
(d) the execution and delivery of this Guarantee by Guarantor (i)
will not violate or require any consent, approval, filing or
notice under any provision of any law, rule, statute or
regulation or order, judgment, writ, injunction or decree of any
court or Governmental Authority applicable to the Guarantor, and
(ii) will not conflict with, or result in the breach or
termination of any provision of, or constitute a default under,
or result in the acceleration of the performance of the
obligations of the Guarantor under, or result in the creation of
a lien, pledge, security interest, charge or encumbrance upon any
of the properties or assets of the Guarantor pursuant to, the
organizational and governing documents of Guarantor, or any
indenture, mortgage, deed of trust, lease, contract, instrument
or other agreement to which Guarantor is a party or by which
Guarantor or any of its properties or assets is bound.
10. SEVERABILITY. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11. NO WAIVER; CUMULATIVE REMEDIES. No Buyer Party shall by any act (except
by a written instrument pursuant to Section 12 hereof), delay, indulgence,
omission or
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otherwise be deemed to have waived any right or remedy hereunder or any breach
of any of the terms and conditions hereof. No failure to exercise, nor any delay
in exercising, on the part of any Buyer Party, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by any Buyer Party of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which such Buyer Party
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
12. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS. None of the terms or
provisions of this Guarantee may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by the Guarantor and the Buyer
Parties, PROVIDED that any provision of this Guarantee may be waived by the
Buyer Parties in a letter or agreement executed by the Buyer Parties or by telex
or facsimile transmission from the Buyer Parties to Guarantor. Guarantor may
assign its obligations hereunder (whether by operation of law or otherwise) only
with the consent of Parent, which consent shall not be unreasonably withheld.
This Guarantee shall be binding upon the successors and assigns of the Guarantor
and shall inure to the benefit of the Buyer Parties and their respective
successors and assigns.
13. NOTICES. Notices by the Buyer Parties to the Guarantor given hereunder
shall be in writing and shall be deemed given when delivered personally, mailed
by registered mail, return receipt requested, sent by documented overnight
delivery service or, to the extent receipt is confirmed, by telecopy, telefax or
other electronic transmission service to the Guarantor at the following address:
AIHL-TH Limited
c/o Novel Enterprises Limited
12/F, Novel Industrial ▇▇▇▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ Sha Wan, Kowloon
Hong Kong
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇
Telecopier No.: ▇▇▇-▇▇▇▇-▇▇▇▇
with a copy to :
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Citypoint
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier No.: ▇▇-▇▇-▇▇▇▇-▇▇▇▇
The Guarantor may change its address and transmission number by written notice
to Parent.
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14. GOVERNING LAW. This Guarantee and all disputes, controversies or claims
arising out of or related to this Guarantee or a breach hereof shall be governed
in all respects, including validity, interpretation and effect, by the laws of
the State of New York as applied to contracts to be performed in New York.
15. JURISDICTION; WAIVER OF TRIAL BY JURY. Guarantor hereby consents to the
jurisdiction of the United States District Court for the Southern District of
New York and any of the courts of the state of New York in any dispute arising
under this Guarantee and agrees further that service of process or notice in any
such action, suit or proceeding shall be effective if in writing and delivered
in person or sent as provided in Section 13 hereof. ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO ANY CLAIM OR ACTION ARISING OUT OF THIS GUARANTEE OR IN
CONNECTION HEREWITH IS HEREBY WAIVED.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly
executed and delivered as of the date first above written.
AIHL-TH LIMITED
By: /s/ Silas ▇.▇. ▇▇▇▇
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Name: Silas ▇.▇. ▇▇▇▇
Title: Co-Chairman of the Board
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