EXHIBIT 10.45
(TRANSLATION)
THAI MILITARY BANK PUBLIC COMPANY LIMITED
Letter of Guarantee
Made at Thai Military Bank Public Company Limited
7 May 1997
We, Downtown D.F.S. (Thailand) Co., Ltd., with offices at ▇▇▇/▇▇-▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, hereinafter called the
"Guarantor" have made this Letter of Guarantee to Thai Military Bank Public
Company Limited, hereinafter called the "Bank" as evidence of the following:
1. Whereas the Bank has granted J.M.T. Duty Free Co., Ltd. hereinafter
called the "Debtor" to borrow money, to borrow money from overdraft
account, to sell discounted promissory note, to open letter of credit
and to make trust receipt and packing credit, or request the Bank to
issue letter of guarantee or oval or certify promissory note, or any
activity creating debts, both existing at present and in the future,
for a sum of Baht 100.000.000.00 (One Hundred Million Baht), the
Guarantor consents to guarantee and be liable to as joint debtor for
performance of the obligation and interest, compensation outstanding
by the Debtor as well as encumbered charges which are accessories
thereof totally or though the Debtor is in default of performance of
the said obligation due to whatever reasons or bankruptcy or death or
becoming incapacitated person or disappearance or removal from the
domicile or could not be found or in any case thereby the Bank has not
received performance of obligation, the Guarantor consents to be
liable to as joint debtor for performance of obligation and interest
thereof at the rate of 18.50% p.a
2. In case the Bank has been demanded to make payment according to the
letter of guarantee issued for the Debtor, it is under the Bank's
discretion to make such payment without having to notify to or obtain
consent from the Guarantor, and the Guarantor consents to be liable to
as joint debtor to the Bank including interest thereof at the above
stated rate as well as penalty, fees, other expenses incurred
therefrom with no condition whatsoever.
3. The Guarantor consents that the above stated domicile is one of the
domiciles of the Guarantor. Notices of the Bank forwarded to the
Guarantor at the address of the Guarantor as appeared in this Letter
of Guarantee, either by registered mail or by messenger, shall be
deemed as having been received by the Guarantor legitimately without
regard to the fact that the Guarantor shall have received or signed
for receipt of such notices in person or not.
4. The Guarantor consents to waive the right to demand the Bank to
proceed the case or enforce from the Debtor's property or the Debtor
first, and this shall not deprive the Bank's right to demand or
proceed the case with the Debtor or the estate or the subrogate or the
Debtor's duty to perform the obligation first as the Bank deems
appropriate. And in this case, if the Bank has not received
performance of obligation or having received it but not in full, the
Guarantor consents that such proceeding shall be the Bank's act for
the Guarantor, thus the Guarantor consents to perform the outstanding
obligation promptly and consents to reimburse all fees and expenses
paid by the Guarantor, whether the Bank has or has not notified the
Guarantor during the course of such action, though having not demand
or proceed the case with the Guarantor jointly with the Debtor or the
estate or the subrogate of the Debtor.
5. This guarantee shall be in force and bind the Guarantor for as long as
the existence of the Debtor's obligation to the Bank due to the fact
that the obligation according to Clause 1 or 2 has not been performed
to the Bank accordingly.
a. If it appears that the obligation according to Clause 1 shall not
bind the Debtor because the Debtor has made it due to
misunderstanding or without authority or being incapacitated, the
responsibility of the Guarantor shall not be relieved without
regard whether the Guarantor knows of the said cause in entering
into the agreement or not.
b. If it appears that any act of the Bank causes the Guarantor not
to be able to accept the whole or part of the rights, pledge,
preferential right that the Debtor has given to the Bank, whether
before or at the time of entering into this agreement, the
Guarantor's liability under this agreement shall not be relieved,
either in whole or in part.
c. On every occasion that the Bank consents to postponement of
performance of obligation, though having not notified the
Guarantor, it shall be deemed that the Guarantor consents to the
same on every occasion and the Guarantor's duty and liability
shall not be relieved due to such postponement.
6. As security for performance of this agreement, the Guarantor consents
to submit
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7. If the Debtor is in breach of any or all Clauses of the agreement and
in case it is necessary to proceed the case at a court, the Bank has
the right to select to proceed the case at a civil court or a court
with jurisdiction in which the domicile of the Debtor or the Bank is
situated or a court with jurisdiction in which the venue where this
agreement has been entered into is situated. as the Bank deems
appropriate.
As evidence of this guarantee, the Guarantor hereunder signs his name in the
presence of witnesses and submit this Letter of Guarantee to the Bank.
Signed Guarantor
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Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
(Authorized Director to Sign Binding the Company)
Signed Witness
-------------------------------
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Signed Witness
-------------------------------
Miss ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
THAI MILITARY BANK PUBLIC COMPANY LIMITED
Letter of Guarantee
Made at Thai Military Bank Public Company Limited
7 May 1997
Mr. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and/or Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ and/or ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ and/or Miss Em-orn Bunkhan, residing at ▇▇▇-▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ hereinafter called the "Guarantor" have
made this Letter of Guarantee to Thai Military Bank Public Company Limited,
hereinafter called the "Bank" as evidence of the following:
1. Whereas the Bank has g~anted J.M.T. Duty Free Co., Ltd. hereinafter
called the "Debtor" to borrow money, to borrow money from overdraft
account, to sell discounted promissory note, to open letter of credit
and to make trust receipt and packing credit, or request the Bank to
issue letter of guarantee or oval or certify promissory note, or any
activity creating debts, both existing at present and in the ffiture,
for a sum of Baht 100.000.000.00 (One Hundred Million Baht), the
Guarantor consents to guarantee and be liable to as joint debtor for
performance of the obligation and interest, compensation outstanding
by the Debtor as well as encumbered charges which are accessories
thereof totally or though the Debtor is in default of performance of
the said obligation due to whatever reasons or bankruptcy or death or
becoming incapacitated person or disappearance or removal from the
domicile or could not be found or in any case thereby the Bank has not
received performance of obligation, the Guarantor consents to be
liable to as joint debtor for performance of obligation and interest
thereof at the rate of 18.50% p.a
2. In case the Bank has been demanded to make payment according to the
letter of guarantee issued for the Debtor, it is under the Bank's
discretion to make such payment without having to notify to or obtain
consent from the Guarantor, and +he Guarantor consents to be liable to
as joint debtor to the Bank including interest thereof at the above
stated rate as well as penalty, fees, other expenses incurred
therefrom with no condition whatsoever.
3. The Guarantor consents that the above stated domicile is one of the
domiciles of the Guarantor. Notices of the Bank forwarded to the
Guarantor at the address of the Guarantor as appeared in this Letter
of Guarantee, either by registered mail or by messenger, shall be
deemed as having been received by the Guarantor legitimately without
regard to the fact that the Guarantor shall have received or signed
for receipt of such notices in person or not.
4. The Guarantor consents to waive the right to demand the Bank to
proceed the case or enforce from the Debtor's property or the Debtor
first, and this shall not deprive the Bank's right to demand or
proceed the case with the-Debtor or the estate or the subrogate or the
Debtor's duty to perform the obligation first as the Bank deems
appropriate. And in this case, if the Bank has not received
performance of obligation or having received it but not in full, the
Guarantor consents that such proceeding shall be the Bank's act for
the Guarantor, thus the Guarantor consents to perform the outstanding
obligation promptly and consents to reimburse all fees and expenses
paid by the Guarantor, whether the Bank has or has not notified the
Guarantor during the course of such action, though having not demand
or proceed the case with the Guarantor jointly with the Debtor or the
estate or the subrogate of the Debtor.
5. This guarantee shall be in force and bind the Guarantor for as long as
the existence of the Debtor's obligation to the Bank due to the fact
that the obligation according to Clause 1 or 2 has not been performed
to the Bank accordingly.
a. If it appears that the obligation according to Clause 1 shall not
bind the Debtor because the Debtor has made it due to
misunderstanding or without authority or being incapacitated, the
responsibility of the Guarantor shall not be relieved without
regard whether the Guarantor knows of the said cause in entering
into the agreement or not.
b. If it appears that any act of the Bank causes the Guarantor not
to be able to accept the whole or part of the rights, pledge,
preferential right that the Debtor has given to the Bank, whether
before or at the time of entering into this agreement, the
Guarantor's liability under this agreement shall not be relieved,
either in whole or in part.
c. On every occasion that the Bank consents to postponement of
performance of obligation, though having not notified the
Guarantor, it shall be deemed that the Guarantor consents to the
same on every occasion and the Guarantor's duty and liability
shall not be relieved due to such postponement.
6. As security for performance of this agreement, the Guarantor consents
to submit
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7. If the Debtor is in breach of any or all Clauses of the agreement and
in case it is necessary to proceed the case at a court, the Bank has
the right to select to proceed the case at a civil court or a court
with jurisdiction in which the domicile of the Debtor or the Bank is
situated or a court with jurisdiction in which the venue where this
agreement has been entered into is situated as the Bank deems
appropriate.
As evidence of this guarantee, the Guarantor hereunder signs his name in the
presence of witnesses and submit this Letter of Guarantee to the Bank.
Signed Guarantor
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Mr. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇/Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Signed Guarantor
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▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇/Miss Em-orn Bunkhan
Signed Witness
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Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Signed Witness
-------------------------------
Miss ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Loan Agreement
Agreement No. 1879
This agreement is made at Citicorp Finance and Security (Thailand) Co., Ltd. on
4 February 1997
between
J.M.T. Duty Free Co., Ltd. with offices at ▇▇▇/▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (hereinafter called the "Borrower" of one part)
and Citicorp Finance and Security (Thailand) Co., Ltd. with offices at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ and 22nd Floors, Kwaeng Silom, Khet Bangrak, Bangkok
(hereinafter called the "Lender" of the other part).
and
Whereas the Borrower has submitted an application for a loan to the Lender, the
details of which appear in the application form-dated 15 November 1996, and the
Lender has considered it and approved the Borrower to obtain the loan.
Therefore, both parties agree to enter into an agreement with the terms and
conditions as follows:
1. The Borrower has borrowed money from the Lender for a sum of Baht
10,000,000. (Ten Million Baht) (hereinafter called the Principal") and
the Borrower confirms that the said sum has been received from the
Lender accordingly on the signing date of this agreement.
2. The Borrower agrees to pay interest to the Lender for the principal
received at the rate of 13.5% (thirteen point five) p.a. from the
signing date of this agreement or at a new rate ;,hich may be lower or
higher than the above stated rate; provided that the higher rate shall
not exceed the maximum interest rate announced by the Lender
(according to the Bank of Thailand's Notification for compliance by
the Lender regarding interest and discount). The Lender shall notify
the Borrower of the new interest rate from time to time whereby the
Borrower agrees to pay interest to the Lender at the new rate as
notified by the Lender with no dispute whatsoever. The Borrower agrees
to repay the principal together with the interest at the rate
prevailing on the maturity date to the Lender whereby making monthly
payment under this agreement to the Lender in full and/or in case of
change of the said interest rate the Borrower consents the Lender to
change the sum of monthly payment to be paid by the Borrower under
this agreement.
3. The Borrower agrees to pay interest according to ▇▇▇▇▇▇ 2 and repay
the principal in monthly installment to the Lender. The first
installment to be paid for a sum of Baht 129,840.- by 4 March 1997,
thereafter the Borrower shall make payment of monthly installment of
Baht 129,840.- by the 4th of every month at the Lender's offices until
repayment shall be made in full to the Lender.
In paying in installment according to the previous paragraph, the
Borrower agrees that the fees and expenses incurred from default of
payment by the Borrower in any installment shall be deducted first,
then all outstanding interest shall be deducted, the balance of which
shall be payment of the principal respecively.
4. The Borrower has the right to repay the principal in full prior to the
maturity date of this loan agreement. In this respect, the Borrower
shall notify the Lender in writing of repayment of the principal in
full for not less than one month in advance. If repayment of the
principal in full shall be in the following period:
within the period of one year from the signing date of this agreement,
the Borrower shall be subject to penalty fee at the rate of 2% of the
principal; and
within the period of two year from the signing date of this agreement,
the Borrower shall be subject to penalty fee at the rate of 1% of the
principal.
5. In addition to the right according to Clause 4, the Borrower has the
right to repay part of the principal whereby each part of the
principal to be repaid on each occasion shall not be less than Baht
10,000.- (Ten Thousand Baht). In this respect, the Borrower shall
notify the Lender in writing of the said intention not less than one
month in advance. Though such repayment shall result in reduction of
the principal under this agreement, the Borrower must pay monthly
installment according to this agreement until the outstanding
principal shall be repaid in full and/or in case of repayment of part
of the principal, the Borrower consents the Lender to change the sum
of monthly installment to be paid by the Borrower under this
agreement.
6. If the Borrower is in default of payment of the principal and/or
interest for any installment according to the date specified in Clause
3, the Borrower agrees to pay interest during the period of default of
payment to the Lender at the rate charged by the Lender to the
defaulted debtors as announced by the Lender (according to the Bank of
Thailand's Notification for compliance by the Lender regarding
interest and discount) from the outstanding principal during the
period of default of payment and pay penalty fee in case of default of
payment at the rate of 2% p.a. of the outstanding principal from the
due date according to Clause 3 to the Lender until the Borrower shall
have performed according to this agreement or until the Lender shall
ha`,e received payment of the outstanding principal in full as the
Lender deems appropriate on a case by case basis.
7. The specified due date of repayment in Clause 3, shall not deprive the
Lender of the right to demand the Borrower to perform the obligation
in whole or in part prior to such date as the-Lender deems
appropriate, and without having to explain the reason to the Borrower
in any way. The Borrower agrees that in case the Lender has notified
such demand, the Borrower shall perform the obligation according to
the demand promptly or not later than seven days from the date of
receipt of the notice and shall not cite the time clause as defense
against the Lender.
8. If the Borrower is in default of payment of the principal and/or
interest for any installment according to the date specified in Clause
3, or is in breach of any clause of this agreement, in addition to all
rights the Lender has according to law, the Lender has the right to
demand the Borrower to repay the outstanding principal and interest
thereof immediately, and the Borrower consents to compensate for the
damages to the Lender immediately for all damages derived from the
default of payment or breach of agreement by the Borrower such as
expenses on warning and demand, proceeding the case, execution for
performance of obligation including the interest charged at the
maximum rate according to Clause 2, or the interest during the period
of default of payment according to Clause 6, as well as penalty fee in
case of default of payment according to Clause 6 of this agreement
until the Lender shall have received performance of obligation in
full.
9. As collateral for performance of obligation by the Borrower to the
Lender under this agreement, the Borrower agrees to register mortgages
of the plots of land: Title Deed Nos. 82944, 42142, 42143, and 42144,
Survey Nos. 5320, 3082, 3081, and 3080 Cadastral 3Tor.lOr., 3Tor.lOr.,
4746, 9874-12, 47461, and 9872-12, Land Nos. 32, 3170, 1981, and 1982,
▇▇▇▇▇ Klan Sub-District, Muang Chiangmai District, Chiangmai Province,
with land areas twenty-two, forty-four, forty-four, and forty-four
square wah respectively, with structures situated on the said plots of
land, existing at present or in the future, with the Lender and agree
that the Lender shall hold the said title deeds until the Lender shall
have received performance of obligation under this agreement
accordingly and redemption of the mortgages to the Borrower. In
addition, the Borrower has brought ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇ to bind
himself as the Guarantor of the Borrower to the Lender
10. In case of default of payment according to ▇▇▇▇▇▇ 8, the Lender has
the right to immediately enforce the mortgages of the property
according to Clause 9 for auction. The Borrower consents the Lender to
allocate the net proceeds derived from the auction, or in case of
foreclosure, for performance of obligation including various
accessories incurred or may be derived from default of payment. If the
net proceeds from the auction or the price of property in case of
foreclosure is less than the said obligation and accessories, the
Borrower consents to pay the Lender of the short amount accordingly.
11. The Borrower agrees to maintain the mortgaged property with
cautiousness in order that damage or loss or deterioration shall not
occur causing such property's value to be less than the mortgage
amounts, and shall not cause any encumbrance to the mortgaged
property. In case value of the mortgaged property depreciates due to
the fault of the Borrower or any person, the Lender has the right to
request the Borrower to mortgage other property to make it equal in
value to the obligation according to Clause 1. If the Borrower refuses
or fails to do so within 30 days, the Lender has the right to
immediately terminate this agreement and demand the Borrower to pay
various fees, outstanding principal and interest under this agreement
in full or enforce the mortgages.
12. The Borrower agrees to arrange for insurance of the structures
existing at the time of entering into this agreement or in the future
with an insurance company approved by the Lender for the insured sum
specified by the Lender as it is deemed appropriate but this shall not
deprive the Borrower of the right to insure for higher insured sum.
The Borrower shall pay for the insurance premiums for the said
insurance, and the Lender has the right to request the Borrower to
indicate the name of the Lender or endorsement to the Lender as
beneficiary in the insurance policies. If the Borrower does not
arrange for the said insurance and the Lender has arranged for it, the
Borrower must reimburse the insurance premiums to the Lender in full
within one month from the date of notification by the Lender. If the
Lender does not pay the insurance premium, the Borrower consents the
Lender to include it in the outstanding amount and consents to
interest charge at the same rate as specified in Clause 2 of the said
amount until the Borrower shall have paid it accordingly. The Lender
shall maintain the said insurance policies.
The Borrower must renew the said insurance policies to be valid at all
times while this loan agreement is in force whereby the Borrower shall
pay for all insurance premiums of such renewal. In case the Borrower
does not pay the insurance premiums for renewal and the Lender has
paid for it, the Borrower consents the Lender to deduct the same from
the monthly installment made according to Clause 3 in the following
month, the balance of which shall be paid for the interest and the
principal respectively.
In case the Borrower does not renew the said insurance or does not pay
the insurance premiums that the Lender has arranged for the insurance
as specified in the previous paragraph, the Lender has the right to
immediately request for performance of obligation by the Borrower in
full whereby the Lender may not exercise the right according to the
first and the second paragraph.
13. The Borrower shall pay for all duty stamps affixed to this agreement
including fees and duties for registration of the mortgages as
collateral for performance of obligation and redemption (if any) as
well as service fees on registration of the mortgages, fees on
appraisal of property and other expenses.
14. All agreements specified in the Mortgage Agreement and the Addendum to
Mortgage Agreement entered into by the Borrower andlor the Mortgagor
with the Lender, any of which not appearing in this agreement, the
Borrower acknowledges the same and it shall be deemed part of this
agreement, binding the Borrower to comply with accordingly.
15. The Borrower agrees that if the Borrower moves from the above stated
address in this agreement, the Borrower shall notify the Lender in
writing within 15 days, otherwise it shall be deemed that the Borrower
is in breach of a substantial agreement, and the Lender has the right
to immediately demand performance of obligation in full from the
Borrower.
16. All written documents, letters, and notices forwarded by the Lender to
the Borrower at the above stated address or the new address as
notified by the Borrower to the Lender in writing according to ▇▇▇▇▇▇
▇▇, shall be deemed as-having been forwarded legitimately and that the
Borrower has received the same legitimately.
Both parties, having read this agreement and understood it entirely, hereunder
sign his name in the presence of witnesses.
Signed Borrower
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J.M.T. Duty Free Co., Ltd.
by Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Signed Witness
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Mr. ▇▇▇▇▇▇▇▇ Inpan
Signed Witness
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▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
