EXHIBIT 10.16.21
--------------------------------------------------------------------------------
DATED 29TH JULY 2005
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
THIRTEENTH DEED OF VARIATION
TO
SYNDICATED LETTER OF CREDIT FACILITY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
XXXXXX XXXX & XXXXXXX
SUITE 1901, 19TH FLOOR, XXXXXX KONG CENTER
0 XXXXX'X XXXX XXXXXXX
XXXX XXXX
--------------------------------------------------------------------------------
THIS DEED OF VARIATION is made the 29th day of July 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 and 27th June 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.
1
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 Sub-clause 11.2.10 of the Facility
Agreement of the words "30TH JULY, 2005", and the insertion of
the words "12TH AUGUST, 2005" in substitution therefor.
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.
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.
2
THE BORROWERS
THE COMMON SEAL of )
TARRANT COMPANY LIMITED )
was hereunto affixed )
in the presence of: )
/S/ XXXXXXX XXX
---------------------------------
Xxxxxxx Xxx, Director
/S/ XXXXXX XXXX
--------------------------------
Xxxxxx Xxxx, Director/Secretary
THE COMMON SEAL of )
MARBLE LIMITED )
was hereunto affixed )
in the presence of: )
/S/ XXXXXXX XXX
---------------------------------
Xxxxxxx Xxx, Director
/S/ XXXXXX XXXX
--------------------------------
Xxxxxx Xxxx, Director/Secretary
THE COMMON SEAL of )
TRADE LINK HOLDINGS LIMITED )
was hereunto affixed )
in the presence of: )
/S/ XXXXXXX XXX
---------------------------------
Xxxxxxx Xxx, Director
/S/ XXXXXX XXXX
--------------------------------
Xxxxxx Xxxx, Director/Secretary
3
THE AGENT
SIGNED for and on behalf of )
UPS CAPITAL GLOBAL )
TRADE FINANCE CORPORATION )
by: )
in the presence of: ) /S/ XXXX X. XXXXXXXX
-----------------------------
Xxxx X. Xxxxxxxx,
Director of Portfolio Management
/S/ XXXXX XXXXXX
--------------------------
Xxxxx Xxxxxx, Witness
4
