EXHIBIT 10.16.16
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DATED 31ST DECEMBER 2004
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TARRANT LUXEMBOURG SARL (1)
(AS CHARGOR)
AND
UPS CAPITAL GLOBAL TRADE FINANCE CORPORATION (2)
(AS SECURITY TRUSTEE)
AMENDMENT AGREEMENT
TO
CHARGE OVER SHARES
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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 LUXEMBOURG SARL (formerly known as Machrima Luxembourg
International S.a.r.l.), a company existing under the laws of
Luxembourg with its registered office at 0, Xxxx x'Xxxxxxxx Xxxxxxx,
X-0000 Xxxxxxxx (xxx "CHARGOR"); and
(2) 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 charge over shares (the "CHARGE OVER SHARES")
entered into on 26th February 2003 by the Chargor in favour of the
Security Trustee (in its capacity as trustee for the Beneficiaries),
the Chargor, inter alia, mortgaged, charged and assigned by way of
first fixed charge the Securities to the Security Trustee (as trustee
for and on behalf of each of the Beneficiaries) as a continuing
security for the due and punctual performance and observance by the
Chargor of all 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 Borrowers, to advance a loan of US$5,000,000 to the Borrowers
upon and subject to the terms and conditions set out therein.
(C) The Chargor is the ultimate beneficial owner of each of the Borrowers,
and it is a condition precedent to the Loan Agreement that the Chargor
execute and deliver this Amendment Agreement in order to agree and
acknowledge that the obligations of the Chargor under the Term Loan
Finance Documents to which it is a party shall be deemed to be included
in the definition of "Secured Obligations" under the Charge over
Shares.
(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 Charge over Shares, the
following words and expressions shall (except where the context
otherwise requires) have the following meanings:-
"Assignment of Notes" the assignment of notes executed as of the
date hereof by the Chargor in favour of
UPSC, in respect of the benefit of two
promissory notes made by Xxxxx Xxxxx Xxxxx
in favour of Tarrant Mexico, S. de X.X. de
C.V. in the sums of US$2,550,000 and
US$1,360,000
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respectively, the benefit of each of which
has been assigned to the Chargor;
"Chargor's Obligations" all of Chargor's obligations under the
Relevant Finance Documents;
"Loan Agreement" the term loan agreement entered into on even
date herewith by and between the Borrowers
and UPSC pursuant to which UPSC has agreed,
at the request of the Borrowers, to advance
a loan of US$5,000,000 to the Borrowers upon
and subject to the terms and conditions
thereof;
"New Guarantee" the guarantee entered into as of the date
hereof by the Chargor in favour of UPSC;
"Relevant Finance each of the Term Loan Finance Documents to
Documents" which the Chargor is a party, including
without limitation (i) the Assignment of
Notes; and (ii) the New Guarantee.
"Term Loan Finance has the meaning ascribed to the term
Documents" "Finance Documents" in the Loan Agreement;
1.2 Words and phrases which are not defined or construed in this Amendment
Agreement but which are defined or construed in the Charge over Shares,
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 Charge over Shares, the terms of this Amendment
Agreement shall prevail.
2. AMENDMENTS
2.1 The Chargor hereby acknowledges and agrees that:-
2.1.1 UPSC shall be deemed to be included in the definition of the
"Beneficiaries" under the Charge over Shares, and the Charge
over Shares shall be deemed to be amended accordingly;
2.1.2 the Relevant Finance Documents shall be deemed to be included
in the definition of the "Security Documents" under the Charge
over Shares, and the Charge over Shares shall be deemed to be
amended accordingly;
2.1.3 the Chargor's Obligations shall be deemed to be included in
the definition of "Secured Obligations" under the Charge over
Shares, and the Charge over Shares shall be deemed to be
amended accordingly; and
2.1.4 the terms and conditions of the Charge over Shares shall
continue to secure all the Secured Obligations, including all
the Chargor's Obligations under the Relevant Finance
Documents.
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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 Charge over Shares or (b) UPSC under any
Relevant Finance Document, nor constitute a waiver of any provision of
the Charge over Shares or any Relevant Finance Document. Except for the
amendments and agreements set forth above, the text of the Charge over
Shares and all Relevant Finance Documents shall remain unchanged and in
full force and effect and the Chargor hereby ratifies and confirms its
obligations thereunder. This Amendment Agreement shall not constitute a
modification of the Charge over Shares or any Relevant Finance Document
or a course of dealing with the Security Trustee or UPSC at variance
with the Charge over Shares or any Relevant Finance Document such as to
require further notice by the Security Trustee or UPSC to require
strict compliance with the terms of the Charge over Shares or any
Relevant Finance Document in the future, except as expressly set forth
herein. The Chargor 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 Charge
over Shares and all Relevant Finance Documents. The Chargor has no
knowledge of any challenge to the Security Trustee's or UPSC's claims
arising under the Charge over Shares or any Relevant Finance Document,
or to the effectiveness of the Charge over Shares or any Relevant
Finance Document.
3.2 The parties hereby acknowledge and confirm that neither the obligations
of the Chargor nor the rights and remedies of the Security Trustee and
UPSC under the Charge over Shares or any Relevant Finance Document 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 Charge over Shares 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 CHARGOR
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SIGNED for and on behalf of )
TARRANT LUXEMBOURG SARL )
by: ) /S/ XXXXXXX XXXXX
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Xxxxxxx Xxxxx, Manager
in the presence of:
/S/ XXXXX XXXX
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WITNESS
THE SECURITY TRUSTEE
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SIGNED for and on behalf of )
UPS CAPITAL GLOBAL )
TRADE FINANCE CORPORATION )
by: ) /S/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx
in the presence of:
/S/ ILLEGIBLE
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WITNESS
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