EXHIBIT 10.16.13
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DATED 31ST DECEMBER 2004
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TARRANT COMPANY LIMITED (1)
AND
MARBLE LIMITED (2)
AND
TRADE LINK HOLDINGS LIMITED (3)
(AS OBLIGORS)
AND
UPS CAPITAL GLOBAL TRADE FINANCE CORPORATION (4)
(AS SECURITY TRUSTEE)
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AMENDMENT AGREEMENT
TO
SYNDICATED COMPOSITE GUARANTEE AND DEBENTURE
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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 AMENDMENT AGREEMENT is made the 31st day of December, 2004
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 ("UPSC") in its capacity
as trustee for the Beneficiaries (the "SECURITY TRUSTEE").
WHEREAS:
(A) Under the terms of a syndicated composite guarantee and debenture (the
"GUARANTEE AND DEBENTURE") entered into on 13th June 2002 by and
between the Obligors and the Security Trustee (as trustee for and on
behalf of each of the Beneficiaries), the Obligors, inter alia, granted
various first fixed and floating charges over and in respect of the
Charged Assets in favour of the Security Trustee (as trustee for and on
behalf of each of the Beneficiaries), as a continuing security for the
payment, performance and discharge of the Secured Obligations, upon the
terms and subject to the conditions set out therein.
(B) Under the terms of the Loan Agreement, UPSC has agreed, at the request
of the Obligors, to advance a loan of US$5,000,000 to the Obligors upon
and subject to the terms and conditions set out therein.
(C) It is a condition precedent to the Loan Agreement that each of the
Obligors execute and deliver this Amendment Agreement in order to agree
and acknowledge that the obligations of the Obligors under the
Financing Documents (as defined in the Loan Agreement) shall be deemed
to be included in the definition of "Secured Obligations" under the
Guarantee and Debenture.
(D) The parties have agreed to enter into this Amendment Agreement upon and
subject to the terms and conditions set out herein.
NOW IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Amendment Agreement and in the Guarantee and Debenture, the
following words and expressions shall (except where the context
otherwise requires) have the following meanings:-
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"Loan Agreement" the term loan agreement entered into on even
date herewith by and between the Obligors
and UPSC pursuant to which UPSC has agreed,
at the request of the Obligors, to advance a
loan of US$5,000,000 to the Obligors upon
and subject to the terms and conditions
thereof; and
"Loan Agreement all monies, obligations and liabilities
Obligations" (whether present or future, actual or
contingent) on the part of each Obligor to
UPSC to be paid, performed or discharged,
whether directly or indirectly, under or
pursuant to the terms of the Finance
Documents (as defined in the Loan Agreement)
to which such Obligor is a party.
1.2 Words and phrases which are not defined or construed in this Amendment
Agreement but which are defined or construed in the Guarantee and
Debenture, 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
Amendment Agreement and the Guarantee and Debenture, the terms of this
Amendment Agreement shall prevail.
2. AMENDMENTS
2.1 Each of the Obligors hereby acknowledges and agrees that:-
2.1.1 UPSC shall be deemed to be included in the definition of the
"Beneficiaries" under the Guarantee and Debenture, and the
Guarantee and Debenture shall be deemed to be amended
accordingly;
2.1.2 the Finance Documents (as defined in the Loan Agreement) shall
be deemed to be included in the definition of the "Finance
Documents" under the Guarantee and Debenture, and the
Guarantee and Debenture shall be deemed to be amended
accordingly;
2.1.3 the Loan Agreement Obligations shall be deemed to be included
in the definition of "Secured Obligations" under the Guarantee
and Debenture, and the Guarantee and Debenture shall be deemed
to be amended accordingly;
2.1.4 the Security Documents (as defined in the Loan Agreement, and
including both the Continuing Security Documents and the New
Security Documents, in each case as defined in the Loan
Agreement) shall be deemed to be included in the definition of
"Security Documents" under the Guarantee and Debenture, and
the Guarantee and Debenture shall be deemed to be amended
accordingly; and
2.1.5 the terms and conditions of the Guarantee and Debenture shall
continue to secure all the Secured Obligations, including all
Loan Agreement Obligations under the Loan Agreement.
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3. NO OTHER AMENDMENTS OR WAIVERS
3.1 The execution, delivery and effectiveness of this Amendment Agreement
shall not operate as a waiver of any right, power or remedy of (a) the
Security Trustee under the Guarantee and Debenture or (b) UPSC under
any of the other Finance Documents, nor constitute a waiver of any
provision of the Guarantee and Debenture or any of the other Finance
Documents. Except for the amendments and agreements set forth above,
the text of the Guarantee and Debenture and all other Finance Documents
shall remain unchanged and in full force and effect and each of the
Obligors hereby ratifies and confirms its obligations thereunder. This
Amendment Agreement shall not constitute a modification of the
Guarantee and Debenture or any of the other Finance Documents or a
course of dealing with the Security Trustee or UPSC at variance with
the Guarantee and Debenture or any of the other Finance Documents such
as to require further notice by the Security Trustee or UPSC to require
strict compliance with the terms of the Guarantee and Debenture or any
of the other Finance Documents in the future, except as expressly set
forth herein. Each of the Obligors acknowledges and expressly agrees
that each of the Security Trustee and UPSC reserves the right to, and
does in fact, require strict compliance with all terms and provisions
of the Guarantee and Debenture and all other Finance Documents. The
Obligors have no knowledge of any challenge to the Security Trustee's
or UPSC's claims arising under the Guarantee and Debenture or any of
the other Finance Documents, or to the effectiveness of the Guarantee
and Debenture or any of the other Finance Documents.
3.2 The parties hereby acknowledge and confirm that neither the obligations
of any Obligor nor the rights and remedies of the Security Trustee and
UPSC under the Guarantee and Debenture 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 Amendment Agreement or
the variation of the terms and conditions of the Guarantee and
Debenture in accordance with this Amendment Agreement.
4. GENERAL
4.1 This Amendment Agreement 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 Amendment Agreement 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 Amendment Agreement has been entered into the day and
year first above written.
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THE OBLIGORS
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
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Xxxxx Xxx, Director
/S/ XXXXX XXX
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Xxxxx Xxx, Director/Secretary
THE COMMON SEAL of )
TRADE LINK HOLDINGS LIMITED )
was hereunto affixed )
in the presence of: )
/S/ XXXXX XXX
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Xxxxx Xxx, Director
/S/ XXXXX XXX
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Xxxxx Xxx, Director/Secretary
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THE SECURITY TRUSTEE
SIGNED for and on behalf of )
UPS CAPITAL GLOBAL )
TRADE FINANCE CORPORATION )
by: )
in the presence of: ) /S/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx
SIGNATURE
/S/ XXXXX XXXXXX
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WITNESS
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