<PAGE> 105
RII INVESTMENT CORP.
TINTARENT LIMITED
- and -
DATA PACKAGING HOLDINGS LIMITED
DEED OF INDEMNITY
=================
LK Shields
Solicitors
39/40 Upper Mount Street,
Dublin 2
(CM/LD/Imdem5.doc)
<PAGE> 106
TABLE OF CONTENTS
SECTION 1.0 - INTERPRETATION
----------------------------
1.1 Definitions
1.2 Construction
1.3 Governing Law
SECTION 2.0 - INDEMNITY
-----------------------
2.1 Indemnity
2.2 Payments treated as Reduction
2.3 Interest
2.4 No withholding etc.
2.5 Limitations and Exclusions
SECTION 3.0 - CLAIMS AND PAYMENTS
---------------------------------
3.1 Conduct of Claims
3.2 Dates for and Quantum of Payments
SECTION 4.0 - GENERAL PROVISIONS
--------------------------------
4.1 Filing of Tax returns
4.2 Purchaser's Indemnity
4.3 Notices
4.4 Non Assignment
4.5 Binding on Successors
4.6 Obligations Joint and Several
4.7 Waiver
4.8 Business Days
<PAGE> 107
THIS DEED is made on , 2000
BETWEEN: RII INVESTMENT CORP.
having its principal place of business
at 300 Delaware Avenue, Suite 900, Wilmington Delaware, 19801
United States of America
(hereinafter called the "Covenantor")
TINTARENT LIMITED
having its registered office
at Deloitte and Touche House, Earlsfort Terrace, Dublin 2
(hereinafter called the "Purchaser"
which expression shall unless the context
does not so permit include its successors in title)
- and -
DATA PACKAGING HOLDINGS LIMITED
having its registered office
at Mullingar Business Park, Mullingar, County Westmeath
(hereinafter called the "Company")
WHEREAS:
By virtue of an Agreement dated day of ,
2000 and made between, the Covenantor, the Purchaser and Others ("the
Agreement") the Purchaser agreed to purchase the entire issued share capital
of the Company ("the Shares") on the terms and conditions set out in the
Agreement and the Covenantor agreed to enter into this Deed.
NOW THIS DEED WITNESSETH as follows:-
SECTION 1.0 - INTERPRETATION
----------------------------
1.1 Definitions
-----------
In this Deed the following expressions shall, unless the context
otherwise requires, have the following meanings:-
(a) "Completion", completion of the sale and purchase of the
Shares in accordance with the Agreement.
(b) "Claim", any notice letter or other document issued or action
taken by or on behalf of any taxing or other competent authority (whether
within or outside Ireland) from which it appears that a Tax liability may be
imposed on the Company.
(c) "Companies", each of the Companies listed in the Sixth
Schedule to the Agreement and the word "Company" shall where the context
permits include any of the Companies.
(d) "Ordinary Course of Business", for the avoidance of doubt the
following events, though not exclusive, will not be treated as occurring in
<PAGE> 108
the ordinary course of business of the Company;
(i) the payment of any dividend or the making of any
other distribution;
(ii) the disposal of any capital assets;
(iii) the disposal of any property or assets (including
trading stock) in circumstances where the consideration actually received for
such disposal is less then the consideration deemed to have been received for
Tax purposes;
(iv) the supply of any service or business facility of any
kind (including a loan of money or the letting, hiring or licensing of any
tangible or intangible property) for consideration which was less then might
reasonably have been regarded as the open market value of such service or
business facility;
save where any of the above occurred regularly or habitually as part of the
Company's trading activities.
(e) "Relief", any loss, allowance, credit, relief, deduction or
set-off which is properly available under Tax law, revenue concession or any
bona fide revenue procedures and precedents to relieve or otherwise mitigate
any Tax liability of the Company.
(f) "Tax Assessment", any assessment demand or other similar
formal notice of a Tax liability issued by or on behalf of any taxing or other
competent authority (whether within or outside Ireland) by virtue of which the
Company is or will with the passing of time become liable to make a payment of
Tax.
(g) "Tax", all forms of tax howsoever and wheresoever arising and
including:-
(i) within Ireland, income tax, corporation tax, stamp
duty, capital duty, value added tax, advance corporation tax, residential
property tax, dividend withholding tax, capital gains tax, customs duty,
excise duty, pay-related social insurance and other similar contributions,
PAYE, professional services withholding tax, estate duty, rates, gift tax,
inheritance tax or any other taxes levies, customs and other duties or imposts
similar to, replaced by or replacing any of them, all costs, expenses,
charges, surcharges, whether by way of penalty or additional liability to tax,
penalties and interest included in or relating to any Tax Assessment therefor;
and
(ii) outside Ireland all taxes including (without
limitation) taxes on gross or net income profits or gains, receipts, sales,
use, occupation, franchise, value added, personal property and other taxes,
levies, imposts, duties, charges or withholdings of any nature whatsoever and
all penalties charges and interest included in or relating to any Tax
Assessment therefor.
(h) "Transaction", any transaction, act, event or omission of
whatever nature including, without limitation, any change in the residence of
any person for the purposes of any Tax, any distribution, failure to
<PAGE> 109
distribute, acquisition, disposal, transfer, payment, loan or advance.
Reference to a Transaction occurring on or before Completion will include the
combined result of two or more Transactions, the first of which has taken
place on or before Completion which results in a liability of the Company to
tax under Section 811 of the Taxes Consolidation Act 1997 or under any other
anti-avoidance provision on foot of a claim.
1.2 Construction
------------
(a) Reference to any Tax liability of the Company shall include
not only liabilities of the Company to make payments of or in respect of Tax
but also:-
(i) the loss or setting off against income, profits or
gains of any unclaimed capital allowances balances available up to 30 April,
2000 or losses available up to 30 April, 2000 in each case arising in the
ordinary course of business of the Company which would (were it not for the
said loss or setting off) have been available to the Company;
(ii) the loss or setting off against any Tax liability of
a right to repayment of Tax which has been treated as an asset of the Company
in the management accounts prepared for the period ended 30th April, 2000; and
(iii) the setting off against income profits or gains
earned accrued or received on or before Completion of any Relief properly
available under Tax law, revenue concession or any bona fide revenue
procedures and precedents which is not available before Completion but arises
in respect of any event occurring after Completion in circumstances where but
for such setting off the Company would have had an actual Tax liability in
respect of which it or the Purchaser would have been able to make a claim
against the Covenantor under this Deed;
and in such a case the amount by which Tax payable by the Company is increased
as a result of the Relief so lost or set off or the amount of the repayment
which would otherwise have been obtained shall be treated for the purposes of
this Deed as a Tax liability of the Company provided that if such Relief is
treated as a deduction from or offset against gross income or profits the Tax
liability which is deemed to have arisen shall be equal to the amount of Tax
which would, in the case of a lost Relief and on the basis of the Tax rates
current at the date of such loss, have been saved thereby but for such loss
or, in the case of the setting off of a Relief, the amount of Tax which has
been saved thereby in consequence of such set off.
(b) References to:-
(i) income or profits or gains earned accrued or received
on or before a particular date or in respect of a particular period shall
include income or profits or gains which have been deemed under Tax law,
revenue concession or any bona fide revenue procedures and precedents to have
been earned accrued or received at or before that date or in respect of that
period for the purposes of any Tax Assessment and/or any other standard or
measure for the assessment of any Tax under Tax law, revenue concession or any
bona fide revenue procedures and precedents;
(ii) any payment or distribution made on or before a
<PAGE> 110
particular date shall include:-
A. any payment or distribution which on or before
that date has fallen due to be made; and
B. any act or transaction which has occurred on
or before that date and is or has been deemed to be a payment or distribution
for the purposes of any Tax Assessment under Tax law, revenue concession or
any bona fide revenue procedures and precedents; and
(iii) any dividend shall include anything which is deemed
under Tax law, revenue concession or any bona fide revenue procedures and
precedents to be a dividend or distribution to shareholders or others for the
purposes of any Tax Assessment.
(c) Words and expressions defined in the Agreement shall except
where otherwise provided as expressly defined have the same meaning in this
Deed.
1.3 Governing Law
-------------
This Deed shall be governed by and construed in accordance with the
laws of Ireland and each of the parties hereto submits to the jurisdiction of
the Courts of Ireland for the purposes of enforcing any claim arising
hereunder.
SECTION 2.0 - INDEMNITY
-----------------------
2.1 Indemnity
---------
The Covenantor hereby covenants to hold each of the Purchaser and the
Company indemnified and to keep each of the Purchaser and the Company
indemnified (subject as hereinafter provided) against any Tax liability of the
Company as a result of:
(a) any Tax liability of the Company:-
(i) in respect of or arising from any Transaction
effected or deemed under Tax law, revenue concession or any bona fide revenue
procedures and precedents to have been effected on or before Completion; or
(ii) by reference to any profits or gains earned, accrued
or received on or before Completion; or
(iii) by reference to amounts in respect of Tax which
should have been deducted by the Company from payments made by it prior to
Completion; or
(iv) arising from a withdrawal of a Relief claimed in
respect of the ordinary course of business of the Company for all periods up
to the Balance Sheet Date, or from a withdrawal of a Relief (other than in
respect of the ordinary course of business of the Company) claimed in respect
<PAGE> 111
of any period of time ending at the date of Completion.
(b) any Tax liability of the Company in respect of or arising
from any Transaction completed after Completion in pursuance of a legally
binding obligation or an arrangement, in either case whether or not
conditional, assumed or entered into on or before Completion otherwise than in
the ordinary course of business; or
(c) any interest, costs and expenses reasonably and properly
incurred by the Purchaser and/or the Company in connection with any such Tax
liability (or claim therefor) in respect of which the Covenantor is liable
hereunder or in taking or defending any successful action under this Deed
against the Covenantor; or
(d) any costs and expenses reasonably and properly incurred by
the Purchaser and/or the Company in connection with any such Tax liability as
is referred to in Clause 2.1(a) and (b).
2.2 Payments treated as Reduction
-----------------------------
Any payment by the Covenantor to the Purchaser (or the Company)
pursuant to this Deed shall constitute a reduction in the consideration
payable for the Shares.
2.3 Interest
--------
If any payment due to be made by the Covenantor to the Purchaser or
the Company under this Deed is not made on the due date for payment thereof
the same shall carry interest from such due date of payment until actual
payment at the rate of 2 per cent per annum above EURIBOR from time to time .
2.4 No withholding etc
------------------
All sums payable by the Covenantor to the Purchaser under this Deed
shall be paid free and clear of all deductions or withholdings by the
Covenantor save only as may be required by law. If any such deductions or
withholdings are required by law, the Covenantor shall be obliged to pay to
the Purchaser such sum as will after such deduction or withholding has been
made leave the Purchaser with the same amount as it would have been entitled
to receive in the absence of any such requirement to make a deduction or
withholding. If any such payment shall be subject to such deduction or
withholding, the Covenantor shall be entitled to elect to reduce accordingly
the consideration for the Shares and shall make a repayment of the appropriate
amount thereof to the Purchaser. If any sum payable by the Covenantor to the
Purchaser under this Deed shall otherwise be subject to Tax in the hands of
the Purchaser the same obligation to make an increased payment shall apply in
relation to such Tax liability as if it were a deduction or withholding
required by law. If the Purchaser or the Company is entitled to receive a
credit or refund for any such withholding, deduction or additional tax in
respect of the sums payable by the Covenantors to the Purchaser, then the
Purchaser or the Company shall forthwith refund such amount to the Covenantor
net of any costs or Tax incurred on it. For the avoidance of doubt the terms
<PAGE> 112
of this Clause 2.4 shall not apply to any payment made to the Company.
2.5 Limitations and Exclusions
--------------------------
Notwithstanding anything else contained in this Deed or in the
Agreement, the liability of the Covenantor under this Deed shall be limited in
the following manner:
(a) The Covenantor shall not be liable in respect of any relevant
claim unless written notice detailing a claim under the Deed and containing
details of the claim and approximate amount thereof shall have been given by
the Purchaser to the Covenantor before the seventh anniversary of the
Completion Date.
(b) Subject to Clause 2.5(j), any relevant claim which is validly
made within the required period aforesaid shall (unless previously settled or
withdrawn) be deemed to have been waived or withdrawn in the event that legal
proceedings in respect thereof are not issued and served on the Covenantor
within twelve months of written notice of the relevant claim first being given
as aforesaid (or where action against a third party is taken pursuant to this
Clause 2.5, within twelve months of remedies against such third party having
been exhausted).
(c) Time shall be of the essence for the purposes of this Clause
2.5.
(d) The aggregate liability of the Covenantor arising in any way
under the Agreement or this Deed any of the other agreements and document
delivered in connection therewith, applicable law or any other theory of
recovery (including any costs suffered or incurred) shall not exceed the
Consideration and Deferred Consideration calculated together.
(e) The Covenantor shall not be liable in respect of any relevant
claim:-
(i) if it would not have arisen but for some voluntary
act, omission, transaction or arrangement carried out at any time by or on
behalf of the Purchaser or after Completion by or on behalf of the Company or
any of its subsidiaries or any of their respective successors in title, save
to the extent that such act, omission, transaction or arrangement was carried
out as a result of a binding contract or commitment entered into by the
Company prior to Completion or otherwise than pursuant to a voluntary
disclosure required under Tax law to be made by the Company in connection with
any audit, investigation or examination with a Tax authority;
(ii) to the extent that the claim arises or is increased
as a result of:-
(I) an increase in rates of taxation, or new
taxation, after the date hereof;
(II) any administrative or judicial decision or
practise or any generally accepted change in the interpretation of the law,
after the date hereof;
<PAGE> 113
(III) the passing of any primary or subordinate
legalisation, or making of any other government regulation, not in force at
the date hereof or the withdrawal or alteration after the date hereof of any
published extra statutory concession made by any fiscal authority and
presently in operation;
(IV) the failure or omission on the part of the
Companies after Completion in respect of the part of the accounting period
spanning Completion up to 30 April 2000 in respect of the ordinary course of
business or up to Completion in respect of all other matters, details of which
were furnished to the Purchaser by the Covenantor prior to Completion, to make
any election, claim, action, surrender or disclaimer or to give any notice or
consent or do any other thing the making or giving or doing of which could
have been performed notwithstanding the sale of the Shares and provided that
there is no material adverse effect on the Purchaser;
(V) the Companies waiving or surrendering in the
current accounting period spanning Completion an exemption, relief allowance,
credit deduction or set off available to it before Completion relevant to the
computation of any liability to taxation or any credit against taxation;
(VI) to the extent the relevant claim would not
have arisen but for the fact that the Companies' accounting policies or the
application thereof (including without limitation the treatment of any assets
or liabilities or of the taxation attributable to any timing differences in
future accounts of the Companies) is changed after the date of Completion from
the treatment or application of the same utilised in preparing the Accounts.
(f) The Covenantor shall not be liable in respect of any relevant
claim:-
(i) to the extent that provision, accrual, allowance or
reserve has been made in the management accounts for the Company and its
subsidiaries prepared for the period ended 30th April, 2000, in respect of the
matter to which the liability relates or that payment or discharge thereof is
or has been taken into account therein or to the extent that such Taxation has
already been discharged by or on behalf of the Covenantor, either by actual
payment, the surrender of losses or the utilisation of a relief arising before
Completion;
(ii) to the extent that the liability in respect thereof
arises as a result of the appropriate provision, accrual, allowance, reserve
in respect of a liability or reserve in the management accounts referred to in
(i) above being insufficient by reason of any increase in rates of Taxation or
variation in the method applying or calculating the rate of Taxation made
after the date of this Agreement;
(iii) to the extent that such claim would not have arisen
but for a cessation of trading or a change in the nature or conduct of trade
by any of the Companies after Completion;
(iv) to the extent that such liability when discharged
gives rise to a cash saving to the Companies the amount of which is certified
by an Independent Accountant.
The "Independent Accountant" referred to in this Clause 2.5 shall be such
<PAGE> 114
chartered accountant as shall be agreed between the parties or in default of
agreement shall be appointed by the President for the time being of the
Institute of Chartered Accountants in Ireland on the application of either the
Covenantor or the Purchaser, and the Independent Accountant shall act as an
expert and not as an arbitrator so that the Arbitration Acts shall not apply.
The costs of the Independent Accountant in respect of cash savings up to IR
10,000 shall be borne by the Covenantor and thereafter as the Independent
Accountant shall direct. The amount of any such cash saving shall to the
extent not used to limit the exposure of the Covenantor in respect of the
claim giving rise thereto, be available for carry forward by the Covenantor to
limit the liability of the Covenantor hereunder in respect of all future
claims hereunder (if any) until exhausted.
(g) The Covenantor shall not be liable in respect of any relevant
claim:-
(i) to the extent the Purchaser or any of the Companies
recovers such loss or damage suffered by either of them arising out of the
breach or claim under the terms of any insurance policy for the time being in
force;
(ii) which would not have arisen but for anything
expressly provided to be done or omitted to be done pursuant to this Deed or
which is otherwise done or omitted to be done at the written request or the
with the written consent of the Purchaser excluding deductions or withholdings
referred to in Clause 2.4;
(iii) which would not have arisen but for (or if the same
is increased by reason of) a breach by the Purchaser or the Company of its
obligations under the Agreement or under this Deed:
(iv) to the extent that any taxation for which the
Purchaser and/or any of the Companies is assessed, is reduced or extinguished
as a result of any such claim or the liability to which it relates;
(v) to the extent that any losses, credits, reliefs or
any other allowable sums arising or becoming available on or before Completion
excluding unclaimed capital allowances balances and losses available up to
Completion in respect of the ordinary course of business and previously
unutilised are available to the Companies for set-off against the Taxation the
subject of such claim or the liability to which it relates (and so that the
use of any such losses, credits, reliefs or allowable sums shall not of itself
give rise to a relevant claim);
(vi) in respect of any indirect or consequential damages;
(vii) to the extent that the claim relates to Taxation
arising from the Company or its subsidiaries carrying on their ordinary course
of business from 30 April 2000 onwards; or
(viii) to the extent that the income, profits or gains in
respect of which the liability for Taxation arises were actually earned,
accrued or received by any of the Companies but were not reflected in the said
management accounts referred to in Clause 2.5(f)(i) above net of all Tax
thereon.
<PAGE> 115
(h) Where the Purchaser and/or Companies are aware at any time
that they are entitled to recover from some other person any sum in respect of
any matter giving rise to a relevant claim, the Purchaser shall and shall
procure that the Companies shall undertake all reasonable steps to enforce
such recovery and in the event that the Purchaser or the Companies shall
recover any amount from such other person the amount of the claim against the
Covenantor shall be reduced by the amount recovered less all costs, charges
and expenses incurred by the Purchaser or the Companies in recovering that sum
from such other person. If the Covenantor pays at any time to the Purchaser
or the Companies an amount pursuant to a relevant claim and the Purchaser or
the Companies subsequently become entitled to recover from some other person
any sum in respect of any matter giving rise to such claim, the Purchaser
shall, and shall procure that the Companies shall, take all steps to enforce
such recovery and shall forthwith repay to the Covenantor so much of the
amount paid by the Covenantor to the Purchaser or the Companies as does not
exceed the sum recovered (whether in cash, by way of credit, set off or
otherwise) from such other person less all costs, charges and expenses
incurred by the Purchaser or the Companies in recovering that sum from such
other person.
(i) Clause 5.14 of the Agreement shall apply mutatis mutandis to
this Deed.
(j) If in respect of a relevant claim the liability of the
Purchaser or the Companies is contingent, then the Covenantor shall not be
under any obligation to make any payment in respect thereof unless and until
such time as the contingent liability ceases to be contingent and becomes
actual, and during the time such liability is contingent, Clause 2.5(b) shall
not apply and the twelve month period therein referred to shall start to run
from the date such liability ceases to be contingent.
(k) Nothing herein or in the Deed shall be deemed to relieve the
Purchaser or the Companies from any common law duty to mitigate any loss or
damage incurred by it or them and the Purchaser undertakes that following
Completion insofar as relevant to the obligations of the Covenantor hereunder,
the Companies shall take all appropriate or reasonably necessary steps in the
ordinary course of its business to perform its obligations owing to and
enforce its rights against third parties.
(l) The Purchaser shall and shall procure that the Companies
shall:-
(i) keep the Covenantor informed of all material
developments known to them in relation to the matter or circumstances which
give or may give rise to a relevant claim; and
(ii) give the Covenantor and its professional advisors
reasonable access to any relevant information, records and accounts within the
power, permission or control of the Purchaser and/or the Companies to enable
the Covenantor and its professional advisors to examine such information,
records and accounts.
(m) Any amount which may be recovered by any of the Purchaser or
the Companies from the Covenantor in respect of a relevant claim shall be
deemed to have been recovered first on account of the Warranties contained in
the Agreement and any amount payable under this Deed arising in relation to
<PAGE> 116
the same matters shall be deemed to be reduced to the extent of such recovery,
without prejudice to the bringing of any action under this Deed or under the
Warranties in the Agreement. For the avoidance of doubt this shall have no
effect on the limitations of liability set out in Clause 5.11 of the Agreement
or on the application of Clause 2.4 of this Deed (i.e. gross up provision).
(n) The provisions of this Clause shall remain in force and be
fully applicable in all circumstances and in particular shall not be
discharged by any breach of the Warranties or the provisions of the Agreement
or this Deed, whatever its nature or consequence, nor by any actual or
purported termination or recission by the Purchaser of this Agreement.
SECTION 3.0 - CLAIMS AND PAYMENTS
---------------------------------
3.1 Conduct of Claims
-----------------
Upon the Company or the Purchaser becoming aware of a Claim it shall
forthwith give written notice thereof to the Covenantor containing details of
the claim and the approximate amount thereof. If the Covenantor indemnifies
and secures the Company and/or (as the case requires) the Purchaser to their
reasonable satisfaction against all Tax liabilities, which may be incurred,
the Purchaser or the Company shall take such action as the Covenantor may
reasonably and promptly by written notice request to avoid, resist, appeal or
compromise the claim. Provided that the Company shall not be obliged to
appeal against any Tax Assessment raised on it if having given the Covenantor
written notice of the receipt of such Tax Assessment it has not within 15
Business Days thereafter received instructions to do so in writing from the
Covenantor in accordance with the preceding provisions of this sub-clause.
Provided further that neither the Company nor the Purchaser shall be obliged
to take any action whatsoever in relation to such claim which is likely in the
reasonable opinion of the Purchaser to materially adversely affect the current
liability (excluding the subject matter of this claim) or the future liability
of the Company to Tax or otherwise to be prejudicial to the reasonable
commercial interests of the Company.
3.2 Dates for and Quantum of Payments
---------------------------------
(a) This Clause shall apply solely for determining the date on
which any payments or repayments shall be made by or to the Covenantor
pursuant to this Deed, and where expressly provided, the amounts thereof.
(b) The Covenantor shall make payment to the Company and/or the
Purchaser (as the case may be) within three Business Days from when the
Company is required to discharge a Claim in order to avoid interest and
penalties.
(c) The Company and/or the Purchaser shall make a repayment to
the Covenantor within three Business Days from when the Company and or the
Purchaser receives any repayment of any amount paid pursuant to paragraph (b)
of this Clause in respect of any Claim or pursuant to Clause 2.4 hereof. Any
repayment to the Covenantor pursuant to this paragraph (c) of this Clause
shall not prejudice the right of either the Company and/or the Purchaser to
<PAGE> 117
recover from the Covenantor under this Deed in the event that a further Claim
is made upon the Company whether in respect of matters to which the repayment
relates or otherwise.
(d) For the purposes of paragraph (b) of this Clause the Company
shall be deemed to discharge a Claim:-
(i) on the date on which the Company is required to pay
any amount of a Tax Liability hereunder which is the subject matter of a claim
hereunder in order to avoid interest or penalties;
(ii) on the date on which the Company would have been
liable to pay an amount of Tax in respect of such Claim but for any Relief, or
other rights or claims of a similar nature available to the Company; or
(iii) on the date upon which the Company would have
received a repayment of Tax in respect of the period prior to Completion but
for the setting off against any Tax liability in respect of which the
Covenantor is liable hereunder of the amount of such repayment of Tax;
as the case may be.
SECTION 4.0 - GENERAL PROVISIONS
--------------------------------
4.1 Filing of Taxation Returns
--------------------------
At the option of the Covenantor, the Covenantor (or its advisors)
shall be given a reasonable opportunity to review all corporation tax returns
and computations in respect of all accounting periods up to and including the
end of the accounting period in which Completion occurs which have not been
filed at Completion and the Purchaser shall consider and take account of the
reasonable suggestions of the Covenantor in relation thereto.
4.2 Purchaser's Indemnity
---------------------
In consideration of the Agreement and the covenants hereby given by
the Covenantor in favour of the Purchaser and the Company, the Purchaser
agrees to indemnify and hold harmless the Covenantor in respect of any
liability it incurs whatsoever resulting from the residence of the Company or
any of its subsidiaries being transferred outside Ireland at any time after
Completion.
4.3 Notices
-------
(a) Any notice or other communication required or permitted to be
given or made hereunder shall be addressed or sent as follows:
(i) if to the Purchaser, if by letter, to Ciaran Harris
at Trend Technologies Europe Limited, Knockmitten Lane, Western Industrial
Estate, Dublin 12, Ireland and to Graeme Stening at Doughty Hanson & Co.,
Times Place, 45 Pall Mall, London SW1Y 5JG, England and if by fax to fax
<PAGE> 118
number (01) 4505065 and to (0044) 207 747 9344 and if by electronic mail to
[email protected] and to [email protected]; and
(ii) if to the Company, to
Data Packaging Holdings Limited
Mullingar Business Park,
Mullingar,
Co. Westmeath;
(iii) if to the Covenantor, if by letter, to
RII Investment Corp.
30 Delaware Avenue
Suite 900
Wilmington Delaware 19801
United States of America;
or to such other postal address or electronic mail or fax number as any such
party hereto may from time to time notify to the other parties hereto in
writing in accordance with the provisions hereof.
(b) Any notice or other communication required or permitted to be
given or made hereunder shall be validly given or made if delivered personally
or if despatched by pre-paid letter post addressed as aforesaid [or if sent by
telex message to such telex number (if any) as may be specified as aforesaid
or if sent by fax to such fax number (if any) as may be specified as
aforesaid] and shall be deemed to be given or made:
(i) if delivered by hand - at the time of delivery;
(ii) if sent by post - forty eight hours after the same
shall have been posted; and
(iii) if sent by electronic mail - at the time of
acknowledgement of receipt; and
(iv) if sent by fax - at the time of termination of the
fax transmission.
4.4 Non Assignment
--------------
This Deed shall not be assignable in whole or in part by any of the
parties hereto without consent of the other save that the Purchaser shall be
entitled to assign and transfer all or any of its rights and obligations
hereunder to any member of the Purchaser's Group or as security interest to
its funders and financiers. If such assignee or transferee shall cease to be
a member of the Purchaser's Group the Purchaser shall provide that it shall
assign its rights and obligations under the Agreement to a member of the
Purchaser's Group prior to so ceasing, provided however, that no such
assignment shall increase the liability of the Covenantor hereunder.
<PAGE> 119
4.5 Binding on Successors
---------------------
This Deed shall enure to the benefit of and be binding upon the
respective parties hereto and their respective successors personal
representatives and permitted assigns.
4.6 Waiver
------
A waiver by any party hereto of any breach by any party hereto of any
of the terms provisions or conditions of this Deed or the acquiescence of a
party hereto in any act (whether of commission or omission) which but for such
acquiescence would be a breach as aforesaid shall not constitute a general
waiver of such term provision or condition or of any subsequent act contrary
thereto.
4.7 Business Days
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If any action or duty to be taken or performed under any of the
provisions hereof would, apart from the provisions of this Clause, fall to be
taken or performed on a day which is not a Business Day such action or duty
shall be taken or performed on the Business Day next following such date.
IN WITNESS whereof these presents have been entered into the day and year
first herein written.
PRESENT when the common seal of
RII INVESTMENT CORP.
was affixed hereto:-
PRESENT when the common seal of
TINTARENT LIMITED
was affixed hereto:
PRESENT when the common seal of
DATA PACKAGING HOLDINGS LIMITED
was affixed hereto:-
