EXHIBIT 10.14.23
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DATED 31ST OCTOBER 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)
FIFTEENTH 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 31st day of October 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, 31st December, 2004, 14th February, 2005,
27th June 2005, 29th July 2005 and 31st August 2005 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 from Clause 1.1 of the
Facility Agreement of the definition of the term "SECURITY
DOCUMENTS", and the substitution therefor of the following:
"`SECURITY DOCUMENTS' (I) THE SYNDICATED COMPOSITE
GUARANTEE AND DEBENTURE, (II) EACH
OF THE PARENT GUARANTEES, (III) THE
GUEZ GUARANTEE, (IV) A CHARGE OVER
SHARES EXECUTED ON 26TH FEBRUARY
2003 BY TARRANT LUXEMBOURG IN FAVOUR
OF THE AGENT (IN ITS CAPACITY AS
SECURITY TRUSTEE THEREUNDER) IN
RESPECT OF ITS SHARES IN TARRANT,
(V) A STOCK PLEDGE AGREEMENT
EXECUTED ON 31ST DECEMBER 2004 BY
XXXXXX XXXX IN FAVOUR OF THE AGENT
(IN ITS CAPACITY AS SECURITY TRUSTEE
HEREUNDER) IN RESPECT OF HIS SHARES
IN TAG, AND (VI) THE INTERCREDITOR
AGREEMENT, IN EACH CASE AS AMENDED
OR MODIFIED FROM TIME TO TIME;"
2.1.2 By the deletion in its entirety from Clause 1.1 of the
Facility Agreement of the definition of the term "TERMINATION
DATE", and the substitution therefor of the following:
"`TERMINATION DATE' 31ST JANUARY, 2006, OR ANY EARLIER
DATE UPON WHICH THE ISSUER MAY
(WHETHER ALONE OR ACTING IN
CONJUNCTION WITH ANY OTHER BANK OR
FINANCIAL INSTITUTION) ENTER INTO A
CREDIT FACILITY AGREEMENT WITH THE
BORROWERS IN ORDER TO REFINANCE THE
FACILITY AND TO SUPERSEDE AND
REPLACE THIS AGREEMENT;"
2.1.3 By the deletion in its entirety of Sub-Clause 4.8.3(a) of the
Facility Agreement, and the substitution therefor with the
following:
"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 3% 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., JP
2
XXXXXX XXXXX BANK AND WACHOVIA BANK, NATIONAL ASSOCIATION (OR
THEIR RESPECTIVE SUCCESSORS-IN-INTEREST) FROM TIME TO TIME;"
2.1.4 By the deletion in its entirety of Sub-Clause 12.3.1 of the
Facility Agreement, and the substitution therefor with the
following:
"FROM THE DATE OF THE OCCURRENCE OF ANY EVENT OF DEFAULT UNTIL
SUCH EVENT OF DEFAULT IS REMEDIED TO THE SATISFACTION OF THE
AGENT, OR UNTIL ALL SUMS PAYABLE HEREUNDER HAVE BEEN SATISFIED
OR DISCHARGED IN FULL AND NONE OF THE BANKS IS UNDER ANY
CONTINGENT LIABILITY HEREUNDER OR UNDER ANY LETTER OF CREDIT,
ANY INTEREST PAYABLE BY THE BORROWER IN RESPECT OF ANY LETTER
OF CREDIT SHALL BE CALCULATED AT THE RATE PER ANNUM EQUAL TO
AN ADDITIONAL 2.5% PER ANNUM TO THAT REFERRED TO IN SUB-CLAUSE
4.8.3(A) ON THE MAXIMUM FACE VALUE OF ANY LETTER OF CREDIT
THEN OUTSTANDING."
2.1.5 By the deletion in its entirety of Schedule 1 to the Facility
Agreement, and the substitution therefor of the following:
"SCHEDULE 1
BANKS AND COMMITMENTS
------------------------- -------------- -------------- ----------------------------
COLUMN 1: BANK COLUMN 2: COLUMN 3: COLUMN 4:
COMMITMENT SUB-LIMIT APPLICABLE PERIOD
------------------------- -------------- -------------- ----------------------------
UPS CAPITAL GLOBAL TRADE US$15,000,000 US$15,000,000 ON OR BEFORE 31ST AUGUST,
FINANCE CORPORATION 2005
------------------------- -------------- -------------- ----------------------------
US$14,500,000 US$11,500,000 AT ANY TIME ON OR AFTER 1ST
SEPTEMBER, 2005, AND BEFORE
1ST OCTOBER, 2005
------------------------- -------------- -------------- ----------------------------
US$14,000,000 US$11,000,000 AT ANY TIME ON OR AFTER 1ST
OCTOBER, 2005 AND BEFORE
1ST NOVEMBER, 2005
------------------------- -------------- -------------- ----------------------------
US$13,500,000 US$10,500,000 AT ANY TIME ON OR AFTER 1ST
NOVEMBER, 2005 AND BEFORE
1ST DECEMBER, 2005
------------------------- -------------- -------------- ----------------------------
US$13,000,000 US$10,000,000 AT ANY TIME ON OR AFTER 1ST
DECEMBER 2005 AND BEFORE
1ST JANUARY, 2006
------------------------- -------------- -------------- ----------------------------
US$12,500,000 US$9,500,000 AT ANY TIME ON OR AFTER 1ST
JANUARY, 2006
------------------------- -------------- -------------- ----------------------------
3. NO OTHER AMENDMENTS OR WAIVERS
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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.
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/ XXXXXXX XXX
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Xxxxxxx 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/ XXXXXXX XXX
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Xxxxxxx 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: ) /S/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx,
Director of Portfolio Management
/S/ XXXXX XXXXXX
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Xxxxx Xxxxxx, WITNESS
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