EXHIBIT 2.K.(v)
PERSONAL GUARANTY
THIS GUARANTY ("Guaranty") dated as of this _____th day of
__________, 1998, executed and delivered by X.X. Xx, an individual residing in
the Hong Kong Special Administrative Region of the People's Republic of China
("Guarantor"), in favor of Peak TrENDS Trust, a business trust organized under
the laws of the State of Delaware (such trust and the trustees thereof acting in
their capacity as such being referred to herein as the "Trust"), in light of the
following:
All terms not otherwise defined herein shall have for the
purposes hereof the meanings set forth in the Purchase Agreement dated as of
__________, 1998, between the Trust and Luckygold 18A Limited, a company
incorporated in the British Virgin Islands (the "Seller") as amended,
supplemented or otherwise modified from time to time (the "Purchase
Agreement").
WHEREAS, the Trust and the Seller have entered into the Purchase
Agreement, with respect to a certain number of shares of common stock, $.01 par
value per share (the "Common Stock"), of Peak International Limited, a Bermuda
holding company (the "Company");
WHEREAS, the Trust, the Company, the Seller, Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation ("DLJ") and BancAmerica Xxxxxxxxx Xxxxxxxx have
entered into the Underwriting Agreement dated as of [ ], relating to the
issuance and sale of the TrENDS;
WHEREAS, the Trust, Seller and The Bank of New York, a New York
banking corporation as collateral agent, have entered into a Collateral
Agreement (the "Collateral Agreement") dated as of _____________, 1998, to grant
to the Trust a security interest in a specified amount of U.S. Treasury
securities and/or shares of Common Stock and in certain other circumstances
certain other collateral to secure the obligations of the Seller thereunder;
WHEREAS, Guarantor is the legal and beneficial owner of all of
the issued and outstanding shares of common stock of the Seller; and
WHEREAS, in order to induce the Trust to enter into the Purchase
Agreement and the Collateral Agreement, and in consideration of the payments to
be made to Seller by the Trust pursuant to the Purchase Agreement, Guarantor has
agreed to personally guaranty the performance of the Purchase Agreement and
Collateral Agreement by the Seller.
NOW, THEREFORE, in consideration of the foregoing, Guarantor
hereby agrees, in favor of the Trust, as follows:
1. GUARANTEED OBLIGATIONS. (a) Guarantor hereby irrevocably and
unconditionally guarantees, as of the date hereof and hereafter, to the Trust,
as and for (a) the representations and warranties and covenants made by Seller
as set forth in the Purchase Agreement, the Reimbursement Agreement and the
Collateral Agreement; and (b) the punctual and faithful performance, keeping,
observance, and fulfillment by Seller of all of the agreements, conditions,
covenants and obligations of Seller contained in the Purchase Agreement and the
Collateral Agreement, and any amendments thereto (the "Guaranteed Obligations")
in each case, for so long as any of the Guaranteed Obligations remain
outstanding or unfulfilled.
[(b) Guarantor agrees that its obligations hereunder are
irrevocable, continuing, absolute, independent and unconditional and shall not
be affected by any circumstance whatsoever (other than the indefeasible payment
in full and the complete performance of the Guaranteed Obligations) which may
constitute a defense or a legal or equitable discharge (whether in whole or in
part) of a guarantor or surety, whether foreseen or unforeseen and whether
similar or dissimilar to any circumstance described in this Guaranty.]
2. CONTINUING GUARANTY. (a) This Guaranty includes Guaranteed
Obligations arising under successive transactions continuing, compromising,
extending, increasing, modifying, releasing, or renewing the Guaranteed
Obligations changing the 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 representations and
warranties. 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 the Trust, (b) no
such revocation shall apply to any Guaranteed Obligations in existence on such
date (including any subsequent continuation, extension, or renewal thereof, or
change in the terms and conditions thereof) and (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 Trust in
existence on the date of such revocation.
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(b) This Guaranty shall remain in full force and effect until all
of the Guaranteed Obligations have been completely performed, notwithstanding
that from time to time prior thereto Guarantor may be free from any of the
Guaranteed Obligations. Any payment by Guarantor of a portion, but not all, of
the Guaranteed Obligations shall in no way limit, affect, modify or abridge
Guarantor's liability for any portion of the Guaranteed Obligations that has not
been completely performed or indefeasibly paid in full.
3. ABSOLUTE AND UNCONDITIONAL GUARANTY. This Guaranty and the
obligations of Guarantor hereunder are not subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than the complete
performance and the indefeasible payment in full of the Guaranteed Obligations),
including, without limitation, the occurrence of any one or more of the
following, whether or not the Guarantor shall have had notice or knowledge of
any of them:
(a) any change in the manner, place or terms of payment
(including the currency thereof) of any of the Guaranteed Obligations;
(b) any settlement, compromise, release or discharge of,
or acceptance or refusal of any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto
or any subordination of the payment of the Guaranteed Obligations to the payment
of any other obligations;
(c) any rescission, waiver, extension, renewal,
alteration, amendment or modification of, or any consent to departure from, any
of the terms or provisions (including without limitation provisions relating to
Events of Default under the Purchase Agreement or the Collateral Agreement) of
the Guaranteed Obligations or any agreement relating thereto, or any other
guaranties or security for the Guaranteed Obligations, in each case whether or
not in accordance with the terms thereof;
(d) any request or acceptance of other guaranties of the
Guaranteed Obligations or the taking and holding of any security for the payment
of the Guaranteed Obligations, this Guaranty, or any other guaranty of the
Guaranteed Obligations or any release, impairment, surrender, exchange,
substitution, compromise, settlement, recision or subordination thereof;
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(e) any change in or reorganization of the corporate
structure of the Company or any of its subsidiaries or any dissolution,
termination, consolidation or merger or sale or other disposition, whether or
not for fair consideration, of all or substantially all of the assets of any of
the foregoing or to any restructuring of the Guaranteed Obligations; or
4. WAIVERS OF NOTICES AND DEFENSES. Guarantor hereby waives:
(a) any defense arising by reason of the incapacity, lack
of authority or any disability of the Guarantor;
(b) any notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance
by the Trust upon this Guaranty or acceptance of this Guaranty (the Guaranteed
Obligations and all dealings between the Company and Guarantor, on the one hand,
and the Trust, on the other hand, being conclusively deemed to have been
created, incurred or conducted in reliance upon this Guaranty);
(c) any setoff or counterclaim, any demand for
performance, notice of nonperformance, diligence, presentment, protest, notice
of protest, notice of dishonor, notice of defaults or Events of Default under
the Purchase Agreement or the Collateral Agreement, notice of any amendment,
renewal, extension or modification of the Guaranteed Obligations or any
agreement related thereto, notice that any portion of the Guaranteed Obligations
is due, notice of any collection proceedings, and notice of any other fact which
might increase the risk of Guarantor.
5. CERTAIN COVENANTS OF GUARANTOR. (a) Guarantor agrees that, so
long as any of obligations of Seller under the Purchase Agreement or the
Collateral Agreement remain outstanding:
(b) Except as specifically set forth below or elsewhere in the
Purchase Agreement or the Collateral Agreement, Guarantor shall not, directly or
indirectly, permit, give consent for, or vote for, whether as shareholder or a
member of the Board of Directors or an officer of the Seller or otherwise,
Seller to engage in any business activity or undertake any other activities,
except for (i) any activity permitted under its Memorandum and Articles of
Association and (ii) any activity relating to the exercise of its rights as
owner of shares of Common Stock of the Company or other property distributed
with respect to such shares of Common Stock
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of the Company and distributing the proceeds thereof to its shareholders as
permitted under the laws of the British Virgin Islands.
(b) Guarantor shall not, directly or indirectly, permit, give
consent for, or vote for, whether as shareholder or a member of the Board of
Directors or an officer of the Seller or otherwise, Seller to authorize or
effect any change in its Memorandum and Articles of Association or pass further
regulations or resolutions without the prior written consent of the trustees of
the Trust;
(c) Guarantor shall not, directly or indirectly, permit, give
consent for, or vote for, whether as shareholder or a member of the Board of
Directors or an officer of the Seller or otherwise, Seller to create, incur or
assume, directly or indirectly, any Debt other than Debt existing as of the date
hereof; provided, however, that the Seller may incur reasonable fees and
expenses in connection with this Agreement, the Purchase Agreement and the
Collateral Agreement and the transactions contemplated hereby and thereby;
provided further that the Seller may declare and distribute dividends to its
shareholders, with the Purchase Price paid by the Purchaser, in accordance with
the laws of the British Virgin Islands. For purposes of this paragraph, "Debt"
means the principal of and premium (if any) in respect of (i) any indebtedness
of the Seller for money borrowed, (ii) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which the
Seller is responsible or liable and (iii) all obligations of the type referred
to in (i) and (ii) above of other person of which Seller is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise, including
by means of any guarantee;
(d) Guarantor shall not, directly or indirectly, permit, give
consent for, or vote for, whether as shareholder or a member of the Board of
Directors or an officer of the Seller or otherwise, Seller to create or suffer
to exist, or enter into any agreement, issue any power of attorney or otherwise
confer on any person the power to create or suffer to exist, any Lien upon any
of its property or assets now owned or hereafter acquired by it securing any
obligation, except as provided in the Collateral Agreement and the transaction
contemplated in the Secured Loan Agreement dated as of March 2, 1998, between
Guarantor and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, as amended.
For purposes of this paragraph, "Lien" means any lien, mortgage, hypothecation,
pledge, security interest (including, without limitation, a fiduciary transfer
or assignment), conditional sale or other title retention agreement or other
similar lien (other than those arising solely by operation of law);
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(e) Guarantor shall not, directly or indirectly, permit, give
consent for, or vote for, whether as shareholder or a member of the Board of
Directors or an officer of the Seller or otherwise, Seller to make any loan to
any other person;
(f) Guarantor shall not, directly or indirectly, permit, give
consent for, or vote for, whether as shareholder or a member of the Board of
Directors or an officer of the Seller or otherwise, Seller, prior to the
Exchange Date, to consolidate or merge with or into any other person in a
transaction in which Seller is not the surviving entity, or convey, transfer or
lease all or substantially all its assets to any person, or agree to any of the
foregoing; and
(g) Without prior written consent of the Trustees, Guarantor
shall not, directly or indirectly, issue, cause to be issued, sell, or cause to
be sold, any equity interest in Seller to a third party except for the
transactions contemplated by the Purchase Agreement, the Collateral Agreement
and the Underwriting Agreement.
(h) Guarantor's execution and delivery of this Guaranty does not
and will not (i) violate or contravene any provisions of applicable law or
regulation, (ii) violate or contravene any provisions of any judgment,
injunction, order or decree of any court or public authority having jurisdiction
over Guarantor, (iii) violate or contravene any provision of any mortgage,
indenture, security agreement, contract, undertaking or other agreement or
instrument to which Guarantor is a party or by which Guarantor is bound.
(i) Guarantor shall not, directly or indirectly, buy shares of
Common Stock for its own account during the 60 days prior to the Exchange Date.
6. BANKRUPTCY EVENT OF DEFAULT. If an Event of Default shall have
occurred as a result of the Seller becoming a debtor under the United States
Bankruptcy Code, or subject to any other bankruptcy, insolvency, liquidation,
reorganization, receivership or similar proceedings, whether under United States
laws or otherwise ("Bankruptcy Proceedings"), the Guarantor agrees, consents and
acknowledges that the Trust shall be entitled to enforce this Guaranty
notwithstanding the pendency of Bankruptcy Proceedings respective the Seller,
whether or not (i) the exercise of the Trust's rights and remedies against the
Seller is stayed by operation of law, court order or otherwise, and (ii) the
resulting Event of Default as against the Seller is void, voided, avoidable or
otherwise not given effect due to the unenforceability of bankruptcy termination
clauses or otherwise.
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7. NO ELECTION. The Trust shall have the right to seek recourse
against Guarantor to the fullest extent provided for herein and no election by
the Trust to proceed in one form of action or proceeding, or against any party,
or any obligation, shall constitute a waiver of the Trust's right to proceed in
any other form of action or proceeding or against other parties unless the Trust
has expressly waived such right in writing. Specifically, but without limiting
the generality of the foregoing, no action or proceeding by the Trust under any
document or instrument evidencing the Guaranteed Obligations shall serve to
diminish the liability of Guarantor under this Guaranty except to the extent
that the Trust finally and unconditionally shall have realized indefeasible
payment by such action or proceeding.
8. CUMULATIVE REMEDIES. No remedy under this Guaranty, the
Purchase Agreement or the Collateral Agreement is intended to be exclusive of
any other remedy, but each and every remedy shall be cumulative and in addition
to any and every other remedy given under this Guaranty, the Purchase Agreement
or the Collateral Agreement, and those provided by law. No delay or omission by
the Trust or exercise any right under this Guaranty shall impair any such right
not be construed to be a waiver thereof. No failure on the part of the Trust to
exercise , and no delay in exercising, any right under this Guaranty shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right under this Guaranty preclude any other or further exercise thereof or the
exercise of any other right.
9. GOVERNING LAW AND SUBMISSION TO JURISDICTION. This Guaranty
shall be construed in accordance with and governed by the laws of the State of
New York without regard to principles of conflicts of laws. Guarantor shall
hereby submits to the jurisdiction of the United States District Court for the
Southern District of New York and any New York state court sitting in New York
City for purpose of all legal proceedings arising out of or relating to this
Guaranty. Guarantor hereby irrevocably waives, to the fullest extent permitted
by law, any objection which he may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an inconvenient
forum. Guarantor hereby irrevocably waives any and all right to trial by jury in
any legal proceeding arising out of or relating to this Guaranty. Guarantor
agrees that (i) the service of process in any such proceeding may be effected by
mailing a copy thereof by registered or certified mail (of any substantially
similar form of mail), postage prepaid, to _________________ as its agent in New
York City for service of process at its address at ___________________ New York,
New York _______ , and (ii) nothing herein
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shall affect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
10. SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
11. CERTAIN EXPENSES. The Guarantor agrees to pay, or cause to be
paid, on demand, and to save the Trust harmless against liability for, any and
all costs and expenses (including, without limitation, fees, costs and expenses
of counsel and fees, costs and expenses incurred in connection with any
bankruptcy case or proceeding) incurred or expended by the Trust in connection
with the enforcement, amendment, modification or waiver of or preservation of
any rights under the Purchase Agreement, the Collateral Agreement and this
Guaranty and the collection of amounts payable hereunder and obtaining advice of
counsel in respect hereof, and until so paid, such fees, costs, disbursements
and expenses shall be added to, and constitute, Guaranteed Obligations. [In
addition, the Guarantor agrees to reimburse DLJ for its reasonable expenses in
connection with the transactions contemplated by the Purchase Agreement and the
Underwriting Agreement, including any costs of indemnification, but not
including any expenses relating to the initial organization of the Trust.]
12. FURTHER ASSURANCES. The Guarantor shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations, or other actions by, or
giving any notices to, or making any filing with, any governmental authority or
any other person) as may be reasonably required or desirable to carry out or to
perform the provisions of this Guaranty.
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IN WITNESS WHEREOF, the undersigned has executed and delivered
this Guaranty as of the ___ th day of ________, 1998.
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X. X. Xx
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