EXHIBIT 10.16.18
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DATED 27TH JUNE 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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TWELFTH 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 27th day of June 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 and 14th February, 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 "TERMINATION
DATE", and the substitution therefor of the following:
"`TERMINATION DATE' 31ST AUGUST, 2005, 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;"
2.1.2 By the deletion in its entirety of Clause 10.4 of the Facility
Agreement, and the substitution therefor with the following:
"10.4 FINANCIAL RATIOS
EACH OF THE BORROWERS SHALL ENSURE THAT, AT ALL
TIMES, THE FINANCIAL CONDITION OF TAG AND THE GROUP
(ON A CONSOLIDATED BASIS), MEASURED ON A QUARTERLY
BASIS, SHALL BE SUCH THAT TANGIBLE NET WORTH SHALL BE
NOT LESS THAN THE FOLLOWING AMOUNTS ON THE FOLLOWING
DATES:
DATE TANGIBLE NET WORTH
---- ------------------
30TH SEPTEMBER, 2004 US$20,000,000
31ST DECEMBER, 2004 US$22,000,000
31ST MARCH, 2005 US$22,000,000
30TH JUNE, 2005 US$22,000,000
30TH SEPTEMBER, 2005, AND ON US$25,000,000
THE LAST DATE OF EACH FISCAL
QUARTER THEREAFTER
AS CALCULATED BY REFERENCE TO THE ACCOUNTING
INFORMATION (THE "RELEVANT ACCOUNTING INFORMATION")
MOST RECENTLY DELIVERED UNDER THIS AGREEMENT BEING
(I) THE ANNUAL AUDITED FINANCIAL STATEMENTS DELIVERED
UNDER CLAUSE 10.2.1 AND (II) EACH SET OF MANAGEMENT
ACCOUNTS (AS CONSOLIDATED FOR THE RELEVANT FISCAL
QUARTER) DELIVERED UNDER CLAUSE 10.2.2."
2.1.3 By the renumbering of existing Sub-clause 10.2.6 as new
Sub-clause 10.2.7, and by the insertion of a new Sub-clause
10.2.6 of the Facility Agreement as follows:
"10.2.6 MONTHLY INVENTORY LISTING: BY THE END OF EACH MONTH
COMMENCING 31ST JULY, 2005, A MONTHLY INVENTORY
LISTING, BY EACH U.S. LOCATION OF TAG AND FRI, FOR
THE IMMEDIATELY PRECEDING MONTH; AND"
2
and by the deletion of the word "AND" being the last word of
Sub-clause 10.2.5 of the Facility Agreement;
2.1.4 By the insertion of a new Sub-clause 11.2.10 of the
Facility Agreement as follows:
"11.2.10 LANDLORD WAIVERS: IT WILL CAUSE AND PROCURE THAT
WRITTEN LANDLORD WAIVERS (IN SUCH FORM AND
SUBSTANCE AS IS SATISFACTORY TO THE AGENT) IN
RESPECT OF EACH LOCATION OR PREMISES OF TAG AND/OR
FRI AT WHICH INVENTORY IS LOCATED, BE DELIVERED TO
THE AGENT ON OR BEFORE 30TH JULY, 2005."
and by the deletion of the period at the end of Sub-clause
11.2.9 and the insertion of the punctuation and words "; AND"
in substitution therefor, and by the deletion of the word
"AND" being the last word of Sub-clause 11.2.8 of the Facility
Agreement.
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.
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.
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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.
4
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
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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
5
THE AGENT
SIGNED for and on behalf of )
UPS CAPITAL GLOBAL )
TRADE FINANCE CORPORATION )
by: )
in the presence of: )
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SIGNATURE
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WITNESS
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