EXHIBIT 10.16.17
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DATED 14TH FEBRUARY 2005
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TARRANT COMPANY LIMITED (1)
AND
MARBLE LIMITED (2)
AND
TRADE LINK HOLDINGS LIMITED (3)
(AS BORROWERS)
AND
UPS CAPITAL GLOBAL TRADE FINANCE CORPORATION (4)
(AS AGENT)
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ELEVENTH DEED OF VARIATION
TO
SYNDICATED LETTER OF CREDIT FACILITY
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XXXXXX XXXX & XXXXXXX
SUITE 1901, 19TH FLOOR, XXXXXX KONG CENTER
0 XXXXX'X XXXX XXXXXXX
XXXX XXXX
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THIS DEED OF VARIATION is made the 14th day of February 2005
BETWEEN:
(1) TARRANT COMPANY LIMITED a company incorporated in Hong Kong under
company number 163310 with its registered office at 00xx Xxxxx, Xxxxxx
Xxxxxx, 00-00 Xxx Xxxx Road, Xxxx Xxxx, Kowloon, Hong Kong ("TARRANT");
(2) MARBLE LIMITED a company incorporated in Hong Kong under company number
399753 with its registered office at 00xx Xxxxx, Xxxxxx Xxxxxx, 00-00
Xxx Xxxx Road, Xxxx Xxxx, Kowloon, Hong Kong ("MARBLE");
(3) TRADE LINK HOLDINGS LIMITED a company incorporated in Hong Kong under
company number 592076 with its registered office at 00xx Xxxxx, Xxxxxx
Xxxxxx, 00-00 Xxx Xxxx Road, Xxxx Xxxx, Kowloon, Hong Kong ("TRADE
LINK"); and
(4) UPS CAPITAL GLOBAL TRADE FINANCE CORPORATION (the "AGENT").
WHEREAS:
(A) Under the terms of a syndicated letter of credit facility agreement
(the "FACILITY AGREEMENT" which expression shall include the same as
from time to time amended, supplemented or modified) entered into on
13th June 2002 by and between the Borrowers and the Finance Parties,
the Agent (in its capacity as the Issuer) agreed, inter alia, to make
available to the Borrowers a facility for the issue of letters of
credit, upon the terms and subject to the conditions set out therein.
(B) Under various Deeds of Variation to the Facility Agreement entered into
on 26th February, 2003, 19th May, 2003, 2nd June, 2003, 18th June,
2003, 23rd December, 2003, 17th March, 2004, 5th May, 2004, 17th June,
2004, 29th October, 2004 and 31st December, 2004 by and between the
Borrowers and the Agent (the "PRIOR DEEDS OF VARIATION"), the parties
thereto agreed to vary the terms of the Facility Agreement as set out
in the Prior Deeds of Variation.
(C) The parties hereto have therefore agreed, pursuant to Clause 23 of the
Facility Agreement, to vary the terms of the Facility Agreement as set
out in this Deed of Variation.
NOW THIS DEED HEREBY WITNESSETH as follows:-
1. DEFINITIONS AND INTERPRETATION
Words and phrases which are not defined or construed in this Deed of
Variation but which are defined or construed in the Facility Agreement,
the Companies Ordinance or the Bankruptcy Ordinance shall be construed
as having the meanings ascribed to them therein. To the extent that
there is any inconsistency between the terms of this Deed of Variation
and the Facility Agreement, the terms of this Deed of Variation shall
prevail. References to clause numbers are to those clauses in the
Facility Agreement, unless indicated otherwise.
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2. VARIATION
2.1 The parties hereto hereby agree that the Facility Agreement shall be
varied in the following manner:-
2.1.1 By the deletion in its entirety of the definition of
"AVAILABLE COMMITMENT" in Clause 1.1 of the Facility
Agreement, and the substitution therefor of the following:
"`AVAILABLE COMMITMENT' THE COMMITMENT OF EACH BANK
LESS THAT BANK'S
PARTICIPATING PROPORTION OF
THE AGGREGATE OF THE SUM OF
(A) THE ISSUER'S CONTINGENT
LIABILITIES UNDER ANY
LETTERS OF CREDIT ISSUED;
AND (B) THE AGGREGATE AMOUNT
CAPITALISED AND AGGREGATED
PURSUANT TO SUB-CLAUSE
4.8.3(D);"
2.1.2 By the deletion in its entirety of the definition of
"OUTSTANDINGS" in Clause 1.1 of the Facility Agreement, and
the substitution therefor of the following:
"`OUTSTANDINGS' IN RELATION TO A BANK AT ANY
TIME, THE AGGREGATE
PRINCIPAL AMOUNT OF ITS
SHARE OF THE US DOLLAR
EQUIVALENT OF THE SUM OF (A)
THE AGGREGATE CONTINGENT
LIABILITIES IN RESPECT OF
ANY UTILISATIONS OUTSTANDING
AT THAT TIME; AND (B) THE
AGGREGATE AMOUNT CAPITALISED
AND AGGREGATED PURSUANT TO
SUB-CLAUSE 4.8.3(D);"
2.1.3 By the deletion in its entirety of Sub-Clause 4.6.5 of the
Facility Agreement, and the substitution therefor of the
following:
"4.6.5 DUE DATES FOR IMPORT LOANS AND DOCUMENTS AGAINST
ACCEPTANCE: UNLESS OTHERWISE AGREED BETWEEN THE
RELEVANT BORROWER AND THE ISSUER, THE DUE DATE FOR
PAYMENT FOR ANY IMPORT LOAN GRANTED BY THE ISSUER
SHALL BE 60 DAYS AFTER THE DATE OF SHIPMENT OF THE
RELEVANT GOODS AND THE DUE DATE FOR ANY DOCUMENTS
AGAINST ACCEPTANCE FINANCED BY THE ISSUER SHALL BE 48
DAYS AFTER THE DATE OF SHIPMENT OF THE RELEVANT
GOODS. THE BORROWERS AGREE WITH AND UNDERTAKE TO THE
ISSUER THAT ANY AND ALL PROCEEDS FROM ANY DOCUMENTS
AGAINST ACCEPTANCE FINANCED BY THE ISSUER WILL BE
UTILISED BY THE BORROWERS FIRST TO REPAY ANY AMOUNTS
IN RESPECT OF ANY OUTSTANDING IMPORT LOANS THAT
EITHER ARE DUE AND OWING OR HAVE REMAINED DUE AND
OWING AFTER THE DUE DATE THEREFOR."
2.1.4 By the deletion in its entirety of Sub-Clause 4.8.3 of the
Facility Agreement, and the substitution therefor of the
following:
"4.8.3 PAYMENT OF LETTER OF CREDIT OBLIGATIONS: WITHOUT
LIMITING OR AFFECTING ANY OF THE PROVISIONS OF THIS
CLAUSE 4.8, THE BORROWERS AGREE TO REIMBURSE THE
AGENT AND EACH BANK FOR ANY DRAWING UNDER ANY LETTER
OF CREDIT, AND ANY OTHER AMOUNTS PAID OR PAYABLE BY
THE ISSUER UNDER ANY LETTER OF CREDIT, IMMEDIATELY
UPON DEMAND, AND TO PAY THE AGENT THE AMOUNT OF ALL
OTHER OBLIGATIONS AND OTHER AMOUNTS PAYABLE TO IT
UNDER OR IN CONNECTION WITH ANY LETTER OF CREDIT
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IMMEDIATELY WHEN DUE, IRRESPECTIVE OF ANY CLAIM,
SET-OFF, DEFENCE OR OTHER RIGHT WHICH THE BORROWERS
MAY HAVE AT ANY TIME AGAINST THE AGENT, THE BANKS,
THE ISSUER OR ANY OTHER PERSON. IN EACH CASE PAYMENT
WILL (UNLESS OTHERWISE AGREED OR REQUIRED BY THE
AGENT) BE MADE IN US DOLLARS IN HONG KONG TOGETHER
WITH ALL INTEREST, CHARGES AND EXPENSES PAYABLE TO OR
INCURRED BY THE ISSUER IN CONNECTION WITH THE LETTER
OF CREDIT. WITHOUT PREJUDICE TO THE PROVISIONS OF
CLAUSE 13:-
(a) INTEREST FOR THESE PURPOSES SHALL ACCRUE
UPON SUCH AMOUNTS AS STATED ABOVE AS WELL
AFTER AS BEFORE JUDGMENT, FROM THE DATE WHEN
SUCH AMOUNTS WERE FIRST PAID BY THE ISSUER
UNTIL PAYMENT OF THEM BY THE BORROWER(S) IN
FULL, AT THE RATE OF 1% PER ANNUM ABOVE THE
INTEREST RATE PUBLISHED UNDER THE "MONEY
RATES" SECTION OF THE WALL STREET JOURNAL
(ON EACH DAY ON WHICH IT IS PUBLISHED) AS
THE "PRIME RATE", AS SUCH RATE MAY CHANGE
FROM TIME TO TIME; PROVIDED, HOWEVER, THAT
IF THE WALL STREET JOURNAL SHALL CEASE TO
PUBLISH SUCH RATE (OR ITSELF CEASES TO BE
PUBLISHED), THEN THE INTEREST RATE SHALL BE
THE HIGHEST AMONG THE PRIME, BASE OR
EQUIVALENT RATES THEN PUBLICLY ANNOUNCED BY
BANK OF AMERICA, N.A., XX XXXXXX CHASE BANK
AND WACHOVIA BANK, NATIONAL ASSOCIATION (OR
THEIR RESPECTIVE SUCCESSORS-IN-INTEREST)
FROM TIME TO TIME;
(b) IF ANY BORROWER DOES NOT PAY ANY SUM PAYABLE
BY IT UNDER THIS AGREEMENT ON ITS DUE DATE,
THEN THE BORROWER SHALL PAY TO THE AGENT, ON
DEMAND:
(i) IN THE CASE OF IMPORT LOANS OR
DOCUMENTS AGAINST ACCEPTANCE WHICH
HAVE BEEN FINANCED BY THE ISSUER
AND WHICH ARE NOT PAID ON THE DUE
DATE THEREFOR, AN AMOUNT (THE "LATE
PAYMENT CHARGE") CALCULATED FROM
THE DUE DATE TO THE DATE OF PAYMENT
THEREOF IN FULL AT THE APPLICABLE
RATE SPECIFIED IN SUB-CLAUSE (A)
ABOVE, PLUS AN ADDITIONAL 1.5% PER
ANNUM; AND
(ii) IN THE EVENT THAT ANY ONE OR MORE
DOCUMENTS AGAINST ACCEPTANCE WHICH
HAVE BEEN FINANCED BY THE ISSUER
AND WHICH ARE DUE FOR PAYMENT ON OR
BEFORE JANUARY 28TH, 2005 ARE NOT
PAID AND REMAIN OUTSTANDING ON
JANUARY 28TH, 2005, A ONE-OFF FEE
(THE "LATE PAYMENT FEE") IN THE
AMOUNT OF US$50,000 IN ADDITION TO
ANY LATE PAYMENT CHARGE PAID OR
PAYABLE IN RESPECT THEREOF.
THE PARTIES HEREBY ACKNOWLEDGE AND AGREE
THAT ANY LATE PAYMENT CHARGE OR LATE PAYMENT
FEE PAYABLE UNDER THIS SUB-CLAUSE 4.8.3
SHALL REPRESENT LIQUIDATED DAMAGES AND SHALL
NOT BE DEEMED TO BE A PENALTY. THE PARTIES
FURTHER AGREE THAT THE AMOUNT OF ANY LATE
PAYMENT CHARGE OR LATE PAYMENT FEE IS A
GENUINE PRE-ESTIMATE OF THE DAMAGES WHICH
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THE ISSUER WILL SUFFER ARISING FROM THE
BORROWERS' FAILURE TO PAY THE RELEVANT SUM
ON THE DUE DATE;
(c) UPON AND DURING THE CONTINUANCE OF AN EVENT
OF DEFAULT, THE INTEREST RATE SHALL BE THE
RATE SET FORTH IN CLAUSE 13.3; PROVIDED,
HOWEVER, THAT ANY LATE PAYMENT CHARGE
PAYABLE UNDER SUB-CLAUSE 4.8.3(B) SHALL NOT
BE DUE AND PAYABLE WITH RESPECT TO THE
PERIOD DURING WHICH THIS SUB-CLAUSE 4.8.3(C)
IS APPLICABLE; AND
(d) AT ANY TIME AS THE AGENT MAY DETERMINE, ANY
AND ALL ACCRUED INTEREST, FEES, CHARGES AND
OTHER SUMS THAT ARE NOT PAID BY ANY BORROWER
ON THE DUE DATE THEREFOR SHALL BE
CAPITALIZED AND AGGREGATED WITH THE TOTAL
OUTSTANDINGS TO THE INTENT AND EFFECT THAT
THE AVAILABLE FACILITY SHALL BE FURTHER
REDUCED BY THE AMOUNT SO CAPITALISED. THE
PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT
ANY AND ALL INTEREST, FEES AND CHARGES
(INCLUDING, WITHOUT LIMITATION, ANY LATE
PAYMENT CHARGE, LATE PAYMENT FEE OR INTEREST
PAYABLE PURSUANT TO CLAUSE 13) PAYABLE UNDER
THIS AGREEMENT SHALL CONTINUE TO ACCRUE ON
ANY SUM SO CAPITALIZED IN ACCORDANCE WITH
THE PROVISIONS HEREOF UNTIL FULL AND FINAL
PAYMENT IN RESPECT THEREOF."
3. NO OTHER AMENDMENTS OR WAIVERS
3.1 The execution, delivery and effectiveness of this Deed of Variation
shall not operate as a waiver of any right, power or remedy of the
Agent under the Facility Agreement or any of the other Finance
Documents, nor constitute a waiver of any provision of the Facility
Agreement or any of the other Finance Documents. Except for the
amendments and agreements set forth above, the text of the Facility
Agreement and all other Finance Documents shall remain unchanged and in
full force and effect and each of the Borrowers hereby ratifies and
confirms its obligations thereunder. This Deed of Variation shall not
constitute a modification of the Facility Agreement or any of the other
Finance Documents or a course of dealing with the Agent at variance
with the Facility Agreement or any of the other Finance Documents such
as to require further notice by the Agent to require strict compliance
with the terms of the Facility Agreement or any of the other Finance
Documents in the future, except as expressly set forth herein. Each of
the Borrowers acknowledges and expressly agrees that the Agent reserves
the right to, and does in fact, require strict compliance with all
terms and provisions of the Facility Agreement and all other Finance
Documents. The Borrowers have no knowledge of any challenge to the
Agent's claims arising under the Facility Agreement or any of the other
Finance Documents, or to the effectiveness of the Facility Agreement or
any of the other Finance Documents.
3.2 The parties hereby acknowledge and confirm that neither the obligations
of any Borrower nor the rights and remedies of the Agent under the
Facility Agreement or any of the other Finance Documents or otherwise
conferred by law shall be discharged, prejudiced or impaired by reason
of the execution of this Deed of Variation or the variation of the
terms and conditions of the Facility Agreement in accordance with this
Deed of Variation.
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4. GENERAL
4.1 This Deed of Variation may be executed in any number of counterparts
and by the different parties hereto on separate counterparts each of
which when so executed and delivered shall be original but all the
counterparts together shall constitute one and the same instrument.
4.2 This Deed of Variation shall be governed and construed in accordance
with the laws of the Hong Kong Special Administrative Region of the
People's Republic of China and the parties hereto agree to submit to
the non-exclusive jurisdiction of the Courts of the Hong Kong Special
Administrative Region of the People's Republic of China.
IN WITNESS WHEREOF this Deed of Variation has been entered into the day and year
first above written.
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THE BORROWERS
THE COMMON SEAL of )
TARRANT COMPANY LIMITED )
was hereunto affixed )
in the presence of: )
/S/ XXXXX XXX
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Xxxxx Xxx, Director
/S/ XXXXXXX XXX
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Xxxxxxx Xxx, Director/Secretary
THE COMMON SEAL of )
MARBLE LIMITED )
was hereunto affixed )
in the presence of: )
/S/ XXXXX XXX
--------------------------------
Xxxxx Xxx, Director
/S/ XXXXX XXX
--------------------------------
Xxxxx Xxx, Director/Secretary
THE COMMON SEAL of )
TRADE LINK HOLDINGS LIMITED )
was hereunto affixed )
in the presence of: )
/S/ XXXXX XXX
--------------------------------
Xxxxx Xxx, Director
/S/ XXXXX XXX
--------------------------------
Xxxxx Xxx, Director/Secretary
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THE AGENT
SIGNED for and on behalf of )
UPS CAPITAL GLOBAL )
TRADE FINANCE CORPORATION )
by: )
in the presence of: ) _____________________________
SIGNATURE
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WITNESS
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