EXHIBIT 10.16.19
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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 LENDER)
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FIRST DEED OF VARIATION
TO
LOAN AGREEMENT
RELATING TO A US$5,000,000 LOAN
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▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇
SUITE 1901, 19TH FLOOR, ▇▇▇▇▇▇ KONG CENTER
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
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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 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇▇ ▇▇▇ ▇▇▇▇ Road, ▇▇▇▇ ▇▇▇▇, Kowloon, Hong Kong
("TARRANT");
(2) MARBLE LIMITED a company incorporated in Hong Kong under company number
399753 with its registered office at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇ ▇▇▇▇ Road, ▇▇▇▇ ▇▇▇▇, Kowloon, Hong Kong
("MARBLE");
(3) TRADE LINK HOLDINGS LIMITED a company incorporated in Hong Kong under
company number 592076 with its registered office at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇▇ ▇▇▇ ▇▇▇▇ Road, ▇▇▇▇ ▇▇▇▇, Kowloon, Hong Kong ("TRADE
LINK"); and
(4) UPS CAPITAL GLOBAL TRADE FINANCE CORPORATION (the "LENDER").
WHEREAS:
(A) Under the terms of a loan agreement relating to a US$5,000,000 loan
(the "LOAN AGREEMENT" which expression shall include the same as from
time to time amended, supplemented or modified) entered into on 31st
December 2004 by and between the Borrowers and the Lender, the Lender
agreed, inter alia, to make available to the Borrowers a term loan,
upon the terms and subject to the conditions set out therein.
(B) The parties hereto have agreed, pursuant to Clause 13.14 of the Loan
Agreement, to vary the terms of the Loan 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 Loan 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 Loan Agreement, the terms of this Deed of Variation shall prevail.
References to clause numbers are to those clauses in the Loan
Agreement, unless indicated otherwise.
2. VARIATION
2.1 The parties hereto hereby agree that the Loan Agreement shall be varied
in the following manner:-
2.1.1 By the deletion in its entirety of Clause 9.6 of the Loan
Agreement, and the substitution therefor with the following:
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"9.6 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
---- ------------------
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 9.4.1 AND (II) EACH SET OF MANAGEMENT
ACCOUNTS (AS CONSOLIDATED FOR THE RELEVANT FISCAL
QUARTER) DELIVERED UNDER CLAUSE 9.4.2."
2.1.2 By the renumbering of existing Sub-clause 9.4.6 as new
Sub-clause 9.4.7, and by the insertion of a new Sub-clause
9.4.6 of the Loan Agreement as follows:
"9.4.6 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"
and by the deletion of the word "AND" being the last word
of Sub-clause 9.4.5 of the Loan Agreement;
2.1.4 By the insertion of a new Sub-clause 10.2.10 of the Loan
Agreement as follows:
"10.2.10 LANDLORD WAIVERS: IT WILL CAUSE AND PROCURE THAT
WRITTEN LANDLORD WAIVERS (IN SUCH FORM AND
SUBSTANCE AS IS SATISFACTORY TO THE LENDER) IN
RESPECT OF EACH LOCATION OR PREMISES OF TAG AND/OR
FRI AT WHICH INVENTORY IS LOCATED, BE DELIVERED TO
THE LENDER ON OR BEFORE 30TH JULY, 2005."
and by the deletion of the period at the end of Sub-clause
10.2.9 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 10.2.8 of the Loan
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
Lender under the Loan Agreement or any of the other Finance Documents,
nor constitute a waiver of any provision of the Loan Agreement or any
of the other Finance Documents. Except for the amendments and
agreements set forth above, the text of the Loan Agreement and all
other Finance Documents shall remain unchanged and in full force and
effect and each of the
2
Borrowers hereby ratifies and confirms its obligations thereunder. This
Deed of Variation shall not constitute a modification of the Loan
Agreement or any of the other Finance Documents or a course of dealing
with the Lender at variance with the Loan Agreement or any of the other
Finance Documents such as to require further notice by the Lender to
require strict compliance with the terms of the Loan 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 Lender reserves the right to, and does in fact, require strict
compliance with all terms and provisions of the Loan Agreement and all
other Finance Documents. The Borrowers have no knowledge of any
challenge to the Lender's claims arising under the Loan Agreement or
any of the other Finance Documents, or to the effectiveness of the Loan
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 Lender under the
Loan 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 Loan 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/ ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇ ▇▇▇, Director
/S/ ▇▇▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇, Director/Secretary
THE COMMON SEAL of )
MARBLE LIMITED )
was hereunto affixed )
in the presence of: )
/S/ ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇ ▇▇▇, Director
/S/ ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇ ▇▇▇, Director/Secretary
THE COMMON SEAL of )
TRADE LINK HOLDINGS LIMITED )
was hereunto affixed )
in the presence of: )
/S/ ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇ ▇▇▇, Director
/S/ ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇ ▇▇▇, Director/Secretary
4
THE LENDER
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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