EXHIBIT 10.31.7
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DATED 5TH MAY, 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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SEVENTH DEED OF VARIATION
TO
SYNDICATED LETTER OF CREDIT FACILITY
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THIS DEED is made the 5th May, 2004.
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 "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, 23rd December, 2003 and 17th March, 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 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.
1
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 insertion of the words "AND/OR" after the punctuation
▇▇▇▇ ";" in Sub-Clause12.1.17 of the Facility Agreement.
2.1.2 By the deletion of the punctuation ▇▇▇▇ ";" and the words
"AND/OR" in Sub-Clause 12.1.18 of the Facility Agreement, and
the substitution therefor with the punctuation ▇▇▇▇ ".".
2.1.3 By the deletion in its entirety of Sub-Clause 12.1.19 of the
Facility Agreement.
2.1.4 By the deletion in its entirety of Sub-Clause 12.3.2 of the
Facility Agreement, and the substitution therefor with the
following:
"12.3.2 WITHOUT PREJUDICE TO SUB-CLAUSE 12.3.1 AND ALL OTHER
RIGHTS AND REMEDIES OF THE AGENT OR ANY FINANCE
PARTY, IF 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), THE
BORROWERS AGREE TO IMMEDIATELY PAY TO THE AGENT FOR
THE ACCOUNT OF THE ISSUER A FEE OF US$100,000 (AND
THE BORROWERS HEREBY IRREVOCABLY AUTHORISE THE AGENT
(ON BEHALF OF THE ISSUER) TO PROCURE THE DEBITING OF
SUCH ACCOUNTS IN THE NAMES OF THE BORROWERS
MAINTAINED BY THE ISSUER AS THE AGENT MAY DETERMINE
IN THE AGGREGATE AMOUNT OF US$100,000 UPON THE SAME
BECOMING DUE AND PAYABLE)."
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.
2
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.
3
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 AGENT
SIGNED for and on behalf of)
UPS CAPITAL GLOBAL )
TRADE FINANCE CORPORATION )
by: )
in the presence of: ) /S/ ▇▇▇▇▇ ▇. ▇▇▇
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WITNESS
5