Guarantee Contract
This guarantee contract is made at Export-Import Bank of Thailand, on 1 November
2001, as evidence that :
1. I, Mr. Xxxxxx Xxxxxxxxxxxx, aged 43 years, Thai race, Thai nationality,
residing at house Xx. 00, Xxx Xxxxxxxxx 00, Xxxx Chak Sub-district,
Phra Khanong District, Bangkok Metropolis, and
2. I, Mr. Viratana Suntaranond, aged 60 years, Thai race, Thai
nationality, residing at house Xx. 00/0, Xxxxxxx Xx. 0, Xxxxxxxxx
Xxx-xxxxxxxx, Bang Khen District, Bangkok Metropolis,
hereinafter called the "Guarantors" consent to guarantee the performance of
obligations of King Power Duty Fee Co., Ltd., hereinafter called the "Debtor,"
to Export-Import Bank of Thailand, hereinafter called the "Bank," for US$
5,000,000.00 (Five Million US Dollar), as follows :
1. The obligations under this guarantee contract are loan, overdraft,
debts related to letter of credit; trust receipt; sale at a discount or
acceptance of sale at a discount of promissory notes; aval/guarantee of
the promissory notes by the Bank as requested by the debtor or other
debts related to promissory notes, debts related to the letters of
guarantee issued by the Bank for the debtor, and the existing debts the
debtor has with the Bank and/or the debts the debtor may have with the
Bank in the future.
Both parties mutually understand that the Guarantors shall be liable to
not only the guarantee amount prescribed above (if any), but also the
accessories thereof such as the unpaid interest and compensation
payment of the debtor, encumbrances which are accessories of the debt,
including all expenses that the Bank has to pay in collection or
entering an action against the debtor for enforcement of performance of
obligations as well.
The Guarantors agree and consent that the Bank is entitled to change
the interest rate prescribed in the first paragraph, from time to time,
as the Bank deems appropriate. Thereby, the Guarantors consent to be
liable to the new interest rate in all respects, without the Bank
having to notify the Guarantors.
2. In case the debtor fails to perform the obligations, be it all items or
separate item, or the debtor is subject to receivership by court order,
or dies or becomes incompetence or quasi-incompetence or disappears or
departs the residence and cannot be found, under any circumstances that
may cause the Bank to be unable to receive performance of obligations,
or the debtor can no longer take advantage of the beginning or the end
of the term, the Guarantors shall be liable jointly with the debtor as
the joint debtors of the obligations under Clause 1 forthwith. Thereby,
the Guarantors agree to perform the obligations to the Bank promptly
and/or consent the Bank to deduct such amount and/or the right of claim
of the Guarantors under Clause 11 as the Bank wishes, without having to
demand the debtor to perform the obligations first, though the debtor
may have property, and without prejudice to the right of the Bank to
proceed to demand or enter an action against the debtor, the heir or
the estate and/or the subrogee of the rights and duties of the debtor
to perform the obligations first, as the Bank deems appropriate. In
such case, if the Bank has not received performance of obligations, or
has received the same but not in full, the Guarantors consent that the
Bank has taken such action for the Guarantors, and the Guarantors
consent to pay the outstanding debt or the remaining amount promptly,
and agree to make reimbursement on the fees and/or expenses the Bank
has paid for taking such action, whether the Bank has notified the
Guarantors in advance or not, and whether the Bank has demanded or
entered an action against the Guarantors jointly with the debtor, the
heir or the estate and/or the subrogee of the rights and duties of the
debtor or not.
In case the debtor is in default of payment or in breach of the loan
agreement or at any time that the Bank deems appropriate, the
Guarantors agree that the Bank is entitled to convert the foreign
currency to Baht, at any time the Bank deems appropriate, based on the
selling exchange rate of the Bank, without having to notify the
Guarantors. In this case, the Guarantors agree and consent that the
loan that has been converted to Baht shall be the loan that the
Guarantors have the duty to pay to the Bank and it shall not be deemed
as debt restructuring.
In case any particular item of the debt guaranteed under this contract
is a debt that the Bank is binding to perform the obligation that the
debtor has with a third party such as issuance of letter of guarantee,
aval/guarantee of promissory notes or other debt of such nature, the
Guarantors hereby consent that if the creditor according to the said
right of claim demands payment from the Bank according to the
obligation the Bank has made, the Bank is entitled to make such payment
immediately without having to notify the Guarantors and/or the debtor
first, and it is not necessary to inquire the debtor whether the debtor
has any defense against the creditor or not, or though the Bank may be
informed that the debtor has a defense against the creditor, but if the
Bank deems it appropriate the Bank can make such payment without having
to raise such defense against the creditor.
3. This guarantee shall be valid continuously, whereby the Guarantors
shall not revoke it, under any circumstances, for as long as the Bank
has not received performance of obligations under Clause 1 in full.
4. This guarantee shall bind the Guarantors completely, though it may
appear at a later date that the debtor shall not be liable to the said
agreement to the Bank due to the fact that such agreement was entered
with misunderstanding or due to being an incompetent person,
disregarding the fact that at the time of entering into this Guarantee
Contract, the Guarantors know of the misunderstanding or incompetence
or not.
5. In case the debtor dies and the Bank has not entered an action for
enforcement of performance of obligations from the heir or the estate
or the subrogee of rights and duties of the debtor, until one year from
the date of death, the Guarantors shall not raise preclusion by
prescription as a defense against the Bank, and shall consent to be
liable to performance of the outstanding obligations jointly with the
debtor as the joint debtor according to the outstanding amount the
debtor has with the Bank accordingly.
6. The Guarantors consent the Bank to grant leniency and/or reduce the
debt and/or compromise and/or permit debt restructuring to the debtor
on every occasion, whether the Guarantors have been notified in advance
or not, and that the Guarantors shall waive the right on the debtor's
defense against the Bank when the Bank demands the Guarantors to comply
with the contract.
7. Though it may appear that any act of the Bank may cause the Guarantors
to be unable to subrogate, either in whole or in part, of the rights,
mortgage, pledge or preference right which the debtor has submitted to
the Bank prior to or at the time of entering into this contract, the
liabilities of the Guarantors under this contract shall not be
relieved, either in whole or in part.
8. The Guarantors consent that any act of the debtor or a third party
causing an interruption to the prescription of the debts under
guarantee to the disadvantage of the debtor, it shall be the
disadvantage of the Guarantors as well.
9. As security for compliance with this contract, the Guarantors consent
to submit the following securities and/or property to the Bank and/or
consent to the following proceedings :
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the above securities and/or property, with no encumbrance whatsoever.
10. With regard to the property submitted to the Bank under Clause 9, the
Guarantors and the Bank agree that though such property may be retained
at the premises of the Guarantors or at the premises of the agent or
the depository of the Guarantors, or the Guarantors or the agent or the
depository of the Guarantors continue to retain such property, it shall
be deemed as retention on behalf and in the name of the Bank, whereby
or the Guarantors or the agent or the depository of the Guarantors
shall be in the position of depository only. Retention of the property
may be relocated to other place only after a written permission has
been obtained from the Bank. Should any damage occur to such property
in whichever manner, the Guarantors shall not cite it as a reason for
refusal of liability, thereby the Guarantors shall remain binding to
perform the obligations under this contract to the Bank in all
respects. the Guarantors shall not charge the fee or remuneration for
retention of such property from the Bank.
11. The Guarantors consent the Bank to deduct all money and/or rights of
claim the Guarantors have with the Bank or may demand from the Bank for
performance of obligations of the Guarantors under this contract
immediately. Any property of the Guarantors in possession of the Bank
shall be deemed that the Guarantors have pledged the same to the Bank,
and the Guarantors consent the Bank to enforce the pledge as
performance of obligation of the Guarantors.
12. In case of one or several guarantors at this time, or the Bank deems to
have one or several persons to be the guarantors additionally at this
time or at a later date, if the Bank has relieved the guarantee or
change the guarantors, be it the relieve or change of one or several
guarantors, or relieve the guarantee either in whole or in part, the
remaining Guarantors consent that such act shall not be deemed as
relieving the liabilities under this contract, either in part and/or in
whole, and it shall not be cited and/or taken advantage or a defense,
which may occur according to Section 293 and Section 296 of the Civil
and Commercial Code, as the reason for relieving the liabilities or
being a defense against the Bank in order to be relieved from the
liabilities.
13. All correspondence and/or notices to be forwarded to the Guarantors, by
registered or regular mail, or by messenger, if having been forwarded
to the above address, it shall be deemed as having been duly forwarded
to the Guarantors, disregarding the fact that there is a recipient or
not, and though it could not be forwarded because such address has been
changed or demolished and the Guarantors have failed to notify such
change or demolition in writing to the Bank, or because such address
could not be found, it shall be deemed that the Guarantors have
acknowledged the same accordingly.
As evidence, the Guarantors hereunder sign their names on the date indicated
above.
- signed - Guarantor
(Mr. Xxxxxx Xxxxxxxxxxxx)
- signed - Guarantor
(Mr. Viratana Suntaranond)
- signed - Witness
(Miss Sonlaya Sathiyalak)
- signed - Witness
(Miss Sasithon Mamueang)
