EXHIBIT 10.16.17
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DATED 14TH FEBRUARY 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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ELEVENTH DEED OF VARIATION
TO
SYNDICATED LETTER OF CREDIT FACILITY
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BARLOW LYDE & GILBERT
SUITE 1901, 19TH FLOOR, CHEUNG KONG CENTER
2 QUEEN'S ROAD CENTRAL
HONG KONG
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<PAGE>
THIS DEED OF VARIATION is made the 14th day
of February 2005
BETWEEN:
(1) TARRANT
COMPANY LIMITED a company incorporated in Hong Kong under
company number 163310 with its registered office at 13th Floor,
Lladro
Centre, 72-80 Hoi Yuen Road, Kwun Tong, Kowloon, Hong Kong
("TARRANT");
(2) MARBLE
LIMITED a company incorporated in Hong Kong under company
number
399753 with its registered office at 13th Floor, Lladro Centre, 72-80
Hoi Yuen Road, Kwun Tong, Kowloon, Hong Kong ("MARBLE");
(3) TRADE LINK
HOLDINGS LIMITED a
company incorporated
in Hong Kong under
company number 592076 with its registered office at 13th Floor,
Lladro
Centre, 72-80 Hoi Yuen
Road, Kwun Tong,
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 and 31st
December, 2004 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
<PAGE>
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
"AVAILABLE
COMMITMENT" in
Clause 1.1 of the Facility
Agreement, and the substitution therefor of the following:
"`AVAILABLE
COMMITMENT'
THE COMMITMENT OF EACH
BANK
LESS THAT
BANK'S
PARTICIPATING
PROPORTION OF
THE AGGREGATE OF THE
SUM OF
(A) THE ISSUER'S
CONTINGENT
LIABILITIES UNDER
ANY
LETTERS OF
CREDIT ISSUED;
AND (B) THE AGGREGATE AMOUNT
CAPITALISED AND
AGGREGATED
PURSUANT
TO
SUB-CLAUSE
4.8.3(D);"
2.1.2 By
the deletion in its entirety of the definition of
"OUTSTANDINGS" in
Clause 1.1 of the Facility Agreement, and
the substitution therefor of the following:
"`OUTSTANDINGS'
IN RELATION TO A BANK AT ANY
TIME, THE
AGGREGATE
PRINCIPAL AMOUNT
OF ITS
SHARE OF
THE US DOLLAR
EQUIVALENT OF THE SUM OF (A)
THE AGGREGATE
CONTINGENT
LIABILITIES IN
RESPECT OF
ANY UTILISATIONS OUTSTANDING
AT THAT TIME; AND (B) THE
AGGREGATE AMOUNT CAPITALISED
AND AGGREGATED
PURSUANT TO
SUB-CLAUSE 4.8.3(D);"
2.1.3 By
the deletion in its
entirety of
Sub-Clause
4.6.5 of the
Facility Agreement,
and the substitution therefor of the
following:
"4.6.5 DUE DATES
FOR IMPORT
LOANS AND DOCUMENTS AGAINST
ACCEPTANCE:
UNLESS OTHERWISE
AGREED BETWEEN THE
RELEVANT BORROWER
AND THE ISSUER,
THE DUE DATE FOR
PAYMENT FOR ANY
IMPORT LOAN GRANTED BY THE ISSUER
SHALL BE 60 DAYS AFTER
THE DATE OF SHIPMENT
OF THE
RELEVANT GOODS
AND THE DUE DATE
FOR ANY DOCUMENTS
AGAINST ACCEPTANCE FINANCED BY THE ISSUER SHALL BE 48
DAYS AFTER
THE DATE OF SHIPMENT OF THE RELEVANT
GOODS. THE BORROWERS
AGREE WITH AND UNDERTAKE TO THE
ISSUER THAT ANY AND ALL PROCEEDS FROM ANY DOCUMENTS
AGAINST ACCEPTANCE
FINANCED BY THE ISSUER WIL
