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Dated day of , 2000
(1) REUNION INDUSTRIES INC.
(2) TINTARENT LIMITED
DEED OF GUARANTEE
=================
XX Xxxxxxx
Solicitors
00/00 Xxxxx Xxxxx Xxxxxx
Xxxxxx 0
(1578-001/ES/LD/Guarant.doc)
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THIS DEED is made the day of , 2000.
BETWEEN:
(1) REUNION INDUSTRIES INC.
having its principal place of business at
00 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxxxxx 00000,
Xxxxxx Xxxxxx of America (hereinafter referred to as "Reunion")
and
(2) TINTARENT LIMITED
having its registered office at
Deloitte & Xxxxxx Xxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxx 0
(hereinafter referred to as "the Purchaser")
NOW THIS DEED WITNESSETH as follows:
1. INTERPRETATION
1.1 Definitions
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In this Deed the following terms shall, unless the context otherwise
expressly requires, have the following meanings:-
"the Company" - Data Packaging Holdings Limited a limited liability company
incorporated in Ireland on 15th February 1997 under registration number
261477.
"Share Purchase Agreement" - means a Share Purchase Agreement of even date
between RII Investment Corp., the parties named in Part I of the First
Schedule thereto, Enterprise Ireland, Reunion and the Purchaser pursuant to
which the Purchaser is to purchase all of the outstanding ordinary share
capital of the Company.
"the Tax Deed" - means a Deed of Indemnity of even date herewith entered into
between RII Investment Corp., the Purchaser and the Company.
"the Vendor" - RII Investment Corp., a corporation incorporated under the laws
of Delaware having its place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx, Xxxxxx Xxxxxx of America.
1.2 Construction
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(a) Any reference to a document being "in the approved terms"
shall mean that such document shall be in a form approved by each of the
parties hereto and for the purpose of identification signed by or on behalf of
the parties approving the same on or prior to the date hereof.
(b) Any reference to any provision of any legislation shall
include any modification re-enactment or extension thereof and shall also
include any subordinate legislation made from time to time under such
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provisions. Any reference to any provision of any legislation unless the
context clearly indicates to the contrary shall be a reference to legislation
of Ireland.
(c) Words such as "hereunder", "hereto", "hereof", and "herein"
and other words commencing with "here" shall unless the context clearly
indicates to the contrary refer to the whole of this Agreement and not to any
particular Section or Clause thereof.
(d) Save as otherwise provided herein any reference to a Section,
Clause, paragraph or sub-paragraph shall be a reference to a Section, Clause
paragraph or sub-paragraph (as the case may be) of this Agreement and any
reference in a Clause to a paragraph or sub-paragraph shall be a reference to
a paragraph or sub-paragraph of the Clause or paragraph in which the reference
is contained unless it appears from the context that a reference to some other
provision is intended.
(e) The Schedules to this Agreement shall form part of this
Agreement.
1.3 Headings and Captions
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The Section headings and captions to the Clauses in this Agreement are
inserted for convenience of reference only and shall not be considered a part
of or affect the construction or interpretation of this Agreement.
2. COVENANTS OF REUNION
2.1 As further consideration for the Purchaser entering into the Share
Purchase Agreement (and for other good and valuable consideration the receipt
and sufficiency of which is acknowledged by Reunion) and without prejudice to
any of the other obligations specifically undertaken by Reunion under the
Share Purchase Agreement, Reunion hereby unconditionally and irrevocably
guarantees to the Purchaser, its successors and assigns the due, complete and
punctual performance by the Vendor of its obligations under the Share Purchase
Agreement and/or the Tax Deed and any documentation, agreement or obligation
executed or entered into by the Vendor thereunder (hereinafter in this Deed
referred to as "the Agreements"). If the Vendor shall fail punctually and
completely to perform any of its obligations under the Agreements, Reunion
shall forthwith procure the same to be performed.
2.2 Reunion agrees that the Purchaser shall be entitled to enforce this
Deed as if Reunion were a primary obligor and without making any demand on or
taking any proceedings against the Vendor and shall not be required before
enforcing the terms of this Deed to pursue, execute, utilise or exhaust any
other right, remedy or security which it may have except only for utilising
the mechanisms for claiming against the Deferred Consideration (as defined in
the Share Purchase Agreement) under Clauses 6.5 and 7.11 of the Share Purchase
Agreement. This Deed shall continue in full force and effect until the all
the liabilities and obligations of Reunion hereunder or the obligations of the
Vendor under the Agreements have been fully performed and discharged.
2.3 This Deed shall not be affected in any way by any time or indulgence
granted to the Vendor or by any variation, postponement, waiver, compromise or
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release of any of its obligations under the Agreements.
2.4 This Deed shall not be affected by the bankruptcy, liquidation or
dissoloution of the Vendor, the appointment of a receiver over the
undertaking, property or assets of the Vendor, the appointment of an
administrator in respect of the Vendor or by any alteration in the
constitution of the Vendor or by reason of any change in the interest of
Reunion in the Vendor. In the event of such matters or other act or event in
consequence of which the Vendor loses its separate legal identity, Reunion
shall become liable for the obligations of the Vendor under the Agreements as
if it were a primary obligor.
2.5 This Deed shall be of a continuing nature and shall not be considered
as wholly satisfied by the partial payment or liquidation at any time or times
hereafter of any sum or sums of money for the time being due to the Purchaser
hereunder or under the Agreements but shall extend to cover and be a security
for all future sums of money at any time owing to the Purchaser under the
Agreements notwithstanding any such partial payment or liquidation.
2.6 This Deed shall not be affected or impaired by reason of any act or
event (whether similar to any of the foregoing or not) which in the absence of
this provision would or might constitute or afford a legal or equitable
discharge or release of or a defence to a guarantee (other than payment (to
the extent of such payments) an express written release by the Purchaser of
Reunion's obligations).
2.7 As a separate and independent obligation Reunion agrees that any sum or
sums of money intended to be covered by this Deed which may not be recoverable
from the Vendor whether by reason of any disability or incapacity,
liquidation, bankruptcy or administration of the Vendor or of any or fact or
circumstances and whether known (actually or constructively) to the Purchaser
or not, but which would have been recoverable from Reunion if Reunion was the
sole or principal debtor in respect thereof in place of the Vendor shall be
recoverable from Reunion as sole or principal debtor in respect thereof.
3. GOVERNING LAW AND JURISDICTION
3.1 This Deed (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this Deed or its
formation) shall be governed by and construed in all respects in accordance
with Irish law exclusively.
3.2 Each of the parties to this Agreement irrevocably agrees that the
courts of Ireland shall have non-exclusive jurisdiction to hear and decide any
suit, action or proceedings.
3.3 Each party irrevocably waives any objection which it might at any time
have to the Courts of Ireland as being the forum to hear and decide any
proceedings and to settle any disputes and agrees not to claim that the Courts
of Ireland are not a convenient or appropriate forum for any such proceedings
or disputes and further irrevocably agrees that a judgement in any proceedings
or disputes brought in and referred to in this clause 3 shall be conclusive
and binding upon the parties and may be enforced in the Courts of any other
jurisdiction.
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4. GENERAL PROVISIONS
4.1 Any notice required to be given under this Deed shall be in writing
signed by (or by some person duly authorised by) the person giving it and may
be served by leaving it or sending it by facsimile, pre-paid recorded delivery
to the address of the relevant parties set out in this sub-clause 4.1. Any
notice so served and shall be deemed to have been received:-
4.1.1 if delivered personally, at the time of delivery;
4.1.2 in the case of notice sent by pre-paid recorded delivery, 72
hours after the date of posting; or
4.1.3 in the case of notice sent by facsimile copier or electronic
means of communication, if the notice was sent during the business hours of
the addressee then on the day of transmission, and otherwise on the next
following Business Day.
For the purpose of this Clause 4 "business hours" means hours of 9 am to 5.30
pm local time in the Country of the addressee.
4.2 Any notice required to be given under this Deed shall be sent:-
4.2.1 if to Reunion at: 00 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: President
Fax: 000 000 000 0000
4.2.2 if to the Purchaser:
if by letter, to Xxxxxx Xxxxxx at Trend Technologies Europe
Limited, Xxxxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx 00, Xxxxxxx and
to Xxxxxx Xxxxxxx at Xxxxxxx Xxxxxx & Co., Times Place, 00 Xxxx Xxxx, Xxxxxx
XX0X 0XX, Xxxxxxx and if by fax to fax number (00) 0000000 and to (0044) 207
747 9344 and if by electronic mail to xxxxxxx@xxxxxxxxx.xx and to
xxxxxxxx@xxxxxxxxxxxxx.xxx; and
or to such other address or facsimile number as is notified in writing from
time to time by one party to the other.
4.3 Assignment
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This Deed shall be assignable by the Purchaser without the consent of
Reunion.
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4.4 Counterparts
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This Deed may be executed in counterparts and each of the parties on
separate counterparts all of which together shall constitute one and the same
instrument.
IN WITNESS whereof this Deed has been entered into the day and year first
above written.
REUNION INDUSTRIES, INC.
BY:
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NAME:
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TITLE:
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Signed by Xxxxxx Xxxxxx on behalf of
TINTARENT LIMITED
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