EXHIBIT 10.31.6
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DATED 17TH MARCH 2004
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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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SIXTH DEED OF VARIATION
TO
SYNDICATED LETTER OF CREDIT FACILITY
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XXXXXX XXXX & XXXXXXX
00XX XXXXX
XXXX XXXXX'X XXXX XXXXXXX
XXXX XXXX
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THIS DEED is made the 17th March 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 (the "AGENT").
WHEREAS:
(A) Under the terms of a syndicated letter of credit facility agreement
(the "FACILITY AGREEMENT" such 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 Beneficiaries, 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
and 23rd December, 2003 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 Borrowers have requested the Agent, and the Agent (in its capacity
as the Issuer) has agreed in principle, to the amendment of the
Facility Agreement as hereinafter set out.
(D) 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.
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References to clause numbers are to those clauses in the Facility
Agreement, unless indicated otherwise.
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 of the definition of
"ADDITIONAL TARRANT FACILITY" in Clause 1.1 of the Facility
Agreement;
2.1.2 By the deletion in its entirety of the definition of "ASSIGNED
LETTERS OF CREDIT" in Clause 1.1 of the Facility Agreement;
2.1.3 By the deletion in its entirety of the definition of
"BORROWERS' FACILITY" in Clause 1.1 of the Facility Agreement;
2.1.4 By the deletion in its entirety of the definition of "DEED OF
ASSIGNMENT" in Clause 1.1 of the Facility Agreement;
2.1.5 By the deletion in its entirety of the definition of
"FACILITY" in Clause 1.1 of the Facility Agreement, and the
substitution therefor with the following:
"`FACILITY' THE FACILITY REFERRED TO IN
CLAUSE 2.1 MADE OR TO BE MADE
AVAILABLE TO THE BORROWERS ON
THE TERMS AND SUBJECT TO THE
CONDITIONS OF THIS AGREEMENT;"
2.1.6 By the deletion in its entirety of the definition of "LETTER
OF CREDIT FEE" in Clause 1.1 of the Facility Agreement, and
the substitution therefor with the following:
"`LETTER OF CREDIT FEE' THE MEANING GIVEN TO IT IN
CLAUSE 17.1;"
2.1.7 By the deletion in its entirety of the definition of "SECURITY
DOCUMENTS" in Clause 1.1 of the Facility Agreement, and the
substitution therefor with the following:
"`SECURITY DOCUMENTS' (i) THE SYNDICATED COMPOSITE
GUARANTEE AND DEBENTURE (ii)
THE PARENT GUARANTEE; (iii) THE
GUEZ GUARANTEE, (iv) A CHARGE
OVER SHARES EXECUTED ON EVEN
DATE HEREWITH BY FRI IN FAVOUR
OF THE AGENT ON BEHALF OF THE
ISSUER AND THE BANKS IN RESPECT
OF ITS SHARES IN TARRANT, AND
(v) THE INTERCREDITOR
AGREEMENT, IN EACH CASE AS
AMENDED OR MODIFIED FROM TIME
TO TIME;"
2.1.8 By the deletion in its entirety Sub-Clause 2.1.1 and
Sub-Clause 2.1.2 of the Facility Agreement, and the
substitution therefor with the following:
"SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE
BANKS MAY MAKE AVAILABLE TO THE BORROWERS AN UNCOMMITTED
LETTER OF CREDIT FACILITY OF UP TO US$25,000,000 (TWENTY FIVE
MILLION US DOLLARS) OR ITS EQUIVALENT FROM TIME TO TIME IN
OTHER CURRENCIES. THE FACILITY SHALL COMPRISE THE PROVISION OF
LETTERS OF
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CREDIT TO BE ISSUED BY THE ISSUER (SUBJECT TO REIMBURSEMENT BY
THE BORROWER AND EACH OF THE BANKS ON THE TERMS SET OUT IN
THIS AGREEMENT) IN A MAXIMUM PRINCIPAL AMOUNT NOT EXCEEDING
US$25,000,000 (TWENTY FIVE MILLION US DOLLARS) OR ITS US
DOLLAR EQUIVALENT FROM TIME TO TIME IN OTHER CURRENCIES."
2.1.9 By the deletion in its entirety Sub-Clause 4.2.1 and
Sub-Clause 4.2.2 of the Facility Agreement, and the
substitution therefor with the following:
"4.2.1 IF THE US DOLLAR EQUIVALENT OF THE MAXIMUM FACE
AMOUNT OF THE REQUESTED LETTER OF CREDIT, PLUS ALL
COMMISSIONS, FEES AND CHARGES DUE FROM THE BORROWER
IN CONNECTION WITH ITS ISSUE, WOULD CAUSE THE AMOUNT
OF THE AVAILABLE FACILITY TO BE EXCEEDED AT SUCH
TIME; OR
4.2.2 IF THE EXPIRY DATE OF THE LETTER OF CREDIT WOULD BE
LATER THAN 364 DAYS FROM ITS DATE OF ISSUE; OR
4.2.3 IF THE US DOLLAR EQUIVALENT OF THE MAXIMUM FACE
AMOUNT OF THE REQUESTED LETTER OF CREDIT WHEN
AGGREGATED WITH THE US DOLLAR EQUIVALENT OF THE
MAXIMUM FACE VALUE OF ALL LETTERS OF CREDIT THEN IN
ISSUE WOULD EXCEED US$25,000,000 (TWENTY FIVE MILLION
US DOLLARS); "
2.1.10 By the deletion in its entirety of Clause 4.12 of the Facility
Agreement.
2.1.11 By the deletion in its entirety of Sub-Clause 11.3.3 of the
Facility Agreement, and the substitution therefor with the
following:
"11.3.3 INDEBTEDNESS: IT WILL NOT, WITHOUT THE PRIOR CONSENT
OF THE AGENT, INCUR OR MAINTAIN ANY INDEBTEDNESS OTHER
THAN:
(a) INDEBTEDNESS UNDER THE FINANCE DOCUMENTS;
(b) SUPPLIERS' CREDIT EXTENDED IN THE ORDINARY
COURSE OF TRADING AND ON ARMS' LENGTH TERMS;
(c) INDEBTEDNESS BETWEEN MEMBERS OF THE GROUP AS
DISCLOSED TO AND PERMITTED BY THE AGENT;
(d) LOANS FROM ITS MAJOR SHAREHOLDERS (PROVIDED
THAT ALL SUCH LOANS ARE SUBORDINATED TO THE
BORROWER'S INDEBTEDNESS TO THE ISSUER AND TO
THE BANKS); AND/OR
(e) INDEBTEDNESS TO GMAC AS SPECIFIED OR REFERRED
TO IN THE INTERCREDITOR AGREEMENT."
2.1.12 By the deletion of the words "AND/OR" from Sub-Clause12.1.17
of the Facility Agreement.
2.1.13 By the deletion of the punctuation xxxx "." in Sub-Clause
12.1.18 of the Facility Agreement, and the substitution
therefor with "; AND/OR".
2.1.14 By the insertion of a new Sub-Clause 12.1.19 of the Facility
Agreement as follows:
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"12.1.19 FAILURE TO COMPLETE REFINANCING: ANY BORROWER OR
THE PARENT FAILS ON OR BEFORE 31ST MAY, 2004 TO
OBTAIN LOAN AND OTHER FINANCE FACILITIES IN
SUBSTITUTION OF THE LOAN AND OTHER FINANCE
FACILITIES PROVIDED TO THE GROUP BY GMAC
(NOTWITHSTANDING THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT, OR THE CONSENT OR ABSENCE
OF CONSENT BY THE AGENT UNDER SUB-CLAUSE 11.3.3)."
2.1.15 By the deletion in its entirety of Clause 12.3 of the Facility
Agreement, and the substitution therefor with the
following:
"12.3 LETTER OF CREDIT FEE FOLLOWING EVENT OF DEFAULT
12.3.1 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 CLAUSE 4.8.3 ON THE MAXIMUM FACE VALUE
OF ANY LETTER OF CREDIT THEN OUTSTANDING.
12.3.2 WITHOUT PREJUDICE TO SUB-CLAUSE 12.3.1 AND
ALL OTHER RIGHTS AND REMEDIES OF THE AGENT
OR ANY FINANCE PARTY, UPON THE OCCURRENCE OF
AN EVENT OF DEFAULT UNDER SUB-CLAUSE
12.1.19, THE BORROWERS AGREE TO IMMEDIATELY
PAY IN CLEARED FUNDS TO THE AGENT FOR THE
ACCOUNT OF THE ISSUER A DEFAULT FEE OF
US$100,000."
2.1.16 By the deletion in its entirety of Clause 17 of the Facility
Agreement, and the substitution therefor with the following:
"17 FEES
THE BORROWERS AGREE TO PAY TO THE AGENT FOR ACCOUNT
OF THE ISSUER A FEE (THE "LETTER OF CREDIT FEE") AS
DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF
SCHEDULE 5."
2.1.17 By the deletion in its entirety of Schedule 1 to the Facility
Agreement, and the substitution therefor with the following:
"SCHEDULE 1
BANKS AND COMMITMENTS
BANK COMMITMENT
UPS CAPITAL GLOBAL TRADE FINANCE US$25 MILLION
CORPORATION"
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2.1.18 By the deletion in its entirety of Schedule 5 to the Facility
Agreement, and the substitution therefor with the following:
"SCHEDULE 5
LETTER OF CREDIT FEES
1. FOR THE ISSUANCE OF ANY LETTER OF CREDIT BY THE ISSUER
IN RESPECT OF THE FACILITY, AN AMOUNT EQUAL TO
ONE-EIGHTH OF ONE PERCENT (0.125%) OF THE FACE AMOUNT
OF THE LETTER OF CREDIT, SUBJECT TO A MINIMUM FEE OF
US$125 AND A MAXIMUM FEE OF US$700;
2. FOR THE AMENDMENT OF ANY LETTER OF CREDIT IN RESPECT
OF THE FACILITY, THE SUM OF US$75;
3. FOR THE EXAMINATION OR NEGOTIATION OF ANY LETTER OF
CREDIT UNDER THE FACILITY THAT IS PAYABLE AT SIGHT, AN
AMOUNT EQUAL TO ONE-EIGHTH OF ONE PERCENT (0.125%) OF
THE FACE AMOUNT OF THE LETTER OF CREDIT, SUBJECT TO A
MINIMUM FEE OF US$100; AND
4. FOR THE EXAMINATION OR NEGOTIATION OF ANY LETTER OF
CREDIT UNDER THE FACILITY PAYABLE UPON A CERTAIN TIME,
AN AMOUNT EQUAL TO SEVEN-TENTHS OF ONE PERCENT (0.7%)
PER ANNUM OF THE FACE AMOUNT OF THE LETTER OF CREDIT,
SUBJECT TO A MINIMUM FEE OF US$100;
IN EACH CASE PLUS ALL OUT-OF-POCKET COSTS, FEES AND EXPENSES
PROPERLY INCURRED BY THE ISSUER (OTHER THAN WHERE SUCH FEES,
COSTS OR EXPENSES ARE INDEMNIFIED PURSUANT TO CLAUSE 4.8.2) IN
CONNECTION WITH THE APPLICATION FOR, ISSUE OF, AMENDMENT TO,
OR EXAMINATION OR NEGOTIATION OF ANY LETTER OF CREDIT, WHICH
SHALL BE PAYABLE AT THE TIME OF SUCH APPLICATION, ISSUE,
AMENDMENT, EXAMINATION OR NEGOTIATION."
3. GENERAL
3.1 The parties hereto hereby acknowledge and confirm that:-
3.1.1 the terms of the Facility Agreement as varied and amended in
accordance with this Deed of Variation shall remain in full
force and effect; and
3.1.2 neither the obligations of any Borrower nor the rights and
remedies of the Agent under the Facility Agreement, any
Security Document or any other Finance Document 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.
3.2 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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3.3 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
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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
--------------------------
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
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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/ ILLEGIBLE
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SIGNATURE
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WITNESS
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