EXHIBIT 15.A
DATED 30 NOVEMBER, 2002 WITH EFFECT FROM 29 NOVEMBER, 2002
▇▇▇▇▇▇ S.A.
AS GUARANTOR
TRIEF CORPORATION S.A.
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GUARANTEE
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▇▇▇▇▇▇▇▇▇ AND MAY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
PWHB/RDXL
CONTENTS
CLAUSE PAGE
1. INTERPRETATION 1
2. GUARANTEE 2
3. REPRESENTATIONS 3
4. DEMERGER 4
5. PRESERVATION OF BENEFICIARY'S RIGHTS 4
6. PAYMENTS 5
7. NOTICES 5
8. ASSIGNMENT 7
9. MISCELLANEOUS 7
10. COUNTERPARTS 8
11. GOVERNING LAW 8
THIS DEED OF
GUARANTEE dated 30 November, 2002 with effect from 29 November,
2002 and made between:
1. ▇▇▇▇▇▇ S.A. a company limited by shares (SOCIETE ANONYME) incorporated
under Luxembourg laws with its registered office at ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "GUARANTOR");
2. TRIEF CORPORATION S.A., a company registered under the Trade and
Commercial Registry of the City of Luxembourg under Section B, number 60
152 with its registered office at ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ("▇▇▇ BENEFICIARY").
BACKGROUND
(A) The Beneficiary has on the date hereof entered into the Call Option
Agreements (defined below) with Beheer - en Beleggingsmaatschappij Tewina
B.V. ("TEWINA").
(B) The Guarantor has agreed to
guarantee the obligations of Tewina under the
Call Option Agreements on the terms and subject to the conditions of this
deed.
The parties agree by way of deed as follows:
1. INTERPRETATION
In this Agreement:
1.1 Unless a contrary intention is indicated, definitions used in the Call
Option Agreements will also apply to this
Guarantee.
1.2 The following expressions bear the following meanings:
"CALL OPTION AGREEMENTS" means the Call Option Agreements dated with
effect from 29 November, 2002 and made between the Beneficiary and
Tewina;
"DEED OF PLEDGE" means a notarial deed of pledge (Dutch law) between the
Guarantor and the Beneficiary dated on or about the date hereof in
relation to certain Shares;
"TAX" includes any form of taxation, levy, duty, charge, contribution or
impost of whatever nature (including any applicable fine, penalty,
surcharge or interest) imposed by a Tax Authority;
"TAX AUTHORITY" means any local, municipal, governmental, state, federal
or other fiscal, revenue, customs and/or excise authority, body or
official anywhere in the world competent to impose Tax.
1.3 The singular includes the plural and vice versa, the masculine gender
includes the feminine, and reference to natural persons include bodies
corporate. Reference to clauses and sub-clauses are to clauses and
sub-clauses of this Agreement, and the headings are for convenience only.
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1.4 A reference to any agreement, document, statute or statutory provision
shall be construed as a reference to the same as it may have been, or may
from time to time be, amended, modified or re-enacted.
2.
GUARANTEE
2.1
GUARANTEE: The Guarantor
guarantees the due and punctual performance of
all obligations of Tewina under the Call Option Agreements and any
obligations of Tewina for the payment of a sum of money arising on
failure to perform its obligations under the Call Option Agreements or
which arise on disclaimer of such obligations (the "
GUARANTEED
OBLIGATIONS"). This
guarantee is unconditional and irrevocable.
2.2 AGREEMENT TO PERFORM: The Guarantor agrees to perform on demand from time
to time each of the Guaranteed Obligations. The demand may be made at any
time on or after the due date for performance of each of the Guaranteed
Obligations.
2.3 DAMAGES: In addition, if for any reason the Guaranteed Obligations are or
become defective, void, unenforceable or not otherwise binding on any
ground or for any reason then the Guarantor undertakes to pay on demand
from time to time an amount in damages equal to the losses and expenses
suffered by the Beneficiary due to the Guaranteed Obligations being or
becoming defective, void, unenforceable or not otherwise binding.
2.4 CONTINUING GUARANTEE: This guarantee is a continuing guarantee. No
payment or other settlement will discharge the Guarantor's obligations
until the Guaranteed Obligations have been discharged in full. The
Guarantor shall have no right to discontinue until the Guaranteed
Obligations are satisfied in full.
2.5 PRESERVATION OF RIGHTS: This guarantee will only be discharged by the
receipt of performance of each Guaranteed Obligation in full. It will not
be discharged by any other action, omission or fact. The Guarantor's
obligations will, therefore, not be affected by among other things:
(A) The Guaranteed Obligations or the rights or security of the
Beneficiary being or becoming void, invalid, illegal or
unenforceable.
(B) Any change, waiver or release of Tewina's obligations.
(C) Any concession, time or indulgence being given to Tewina or any
other person.
(D) The insolvency, incapacity, winding-up or re-organisation of
Tewina.
(E) Any change in the condition, nature or status of Tewina, the
Guarantor or Trief or any statutory or other compromise or
arrangement with creditors affecting Tewina.
(F) Any of the above events occurring in relation to another guarantor
or provider of security or in relation to its obligations.
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(G) Any circumstances affecting or preventing recovery of amounts
expressed to be due by Tewina or which might operate to release or
reduce the Guarantor's liability under this deed.
2.6 OTHER DEFENCES: The Guarantor's liability under Clause 2 shall not be
affected by anything which would not have released or reduced such
liability had the liability been as a principal debtor instead of as a
guarantor.
2.7 COVENANTS OF THE GUARANTOR: The Guarantor agrees as follows:
The Guarantor will not:
(A) take the benefit of any right against Tewina or any other person
in respect of amounts paid under this Guarantee; or
(B) claim or exercise against Tewina any right to any payment (whether
or not in connection with the Call Option Agreements).
The obligations in this sub-clause will cease to have effect when there
are no amounts outstanding under the Call Option Agreements or under this
deed.
3. REPRESENTATIONS
3.1 INITIAL REPRESENTATIONS: The Guarantor confirms that each of the
following is true:
(A) NATURE OF GUARANTOR: The Guarantor is a company duly incorporated
and validly existing under the laws of Luxembourg.
(B) POWERS OF GUARANTOR: The Guarantor has power to sign and deliver
this Guarantee and to exercise its right and perform its
obligations under this Guarantee and neither this Guarantee nor
its performance will infringe any law or obligation binding on it.
(C) AUTHORISATIONS: The signature and delivery of this Guarantee on
behalf of the Guarantor and the exercise of the Guarantor's rights
and the performance of its obligations under this Guarantee have
been duly authorised.
(D) BINDING OBLIGATIONS: This Guarantee has been duly signed and
delivered by the Guarantor. The obligations of the Guarantor
described in this Guarantee are legal, valid and binding
obligations of the Guarantor in accordance with their terms.
(E) INSOLVENCY: No steps have been taken, and no proceedings started
or threatened, for the winding-up, or for the appointment of a
receiver, administrator, liquidator or other officer, of the
Guarantor or a Subsidiary (as defined in the Companies Act 1985)
or any of its assets. No analogous event has occurred in any
jurisdiction.
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(F) OTHER APPROVALS: No consent, permit, licence, approval,
authorisation or registration of or with any governmental,
judicial or other authority is required in connection with the
execution, performance, validity or enforceability of this deed.
4. DEMERGER
4.1 The parties acknowledge that a statutory demerger (juridische splising)
of the Guarantor (the "DEMERGER") is contemplated pursuant to which the
rights and obligations of the Guarantor shall be transferred by operation
of law to ▇▇▇▇▇▇ I S.A.
4.2 The Beneficiary hereby consents to the Dermerger and agrees in advance to
the substitution, effective upon the effectiveness of the Demerger, of
▇▇▇▇▇▇ I S.A. for the Guarantor as the guarantor hereunder and to the
assignment and transfer of all of the Guarantor's rights and obligations
under this deed to ▇▇▇▇▇▇ I S.A. provided that Luxembourg counsels to
▇▇▇▇▇▇ 1 SA provide a legal opinion to the Beneficiary in form and
substance satisfactory to the Beneficiary confirming that the guarantee
to be granted by ▇▇▇▇▇▇ 1 S.A. is binding and enforceable upon ▇▇▇▇▇▇ 1
SA to the same extent this guarantee is binding and enforceable against
the current Guarantor. Furthermore ▇▇▇▇▇▇ 1 SA, ▇▇▇▇▇▇ 2 SA, ▇▇▇▇▇▇ 3 SA
and the Guarantor undertake to execute such further documents and to take
such other steps as may be necessary to insure that ▇▇▇▇▇▇ 1 SA
obligations under this guarantee to be given by ▇▇▇▇▇▇ 1 SA are legal and
valid upon ▇▇▇▇▇▇ 1 SA. Provided that the Beneficiary has obtained a
valid and binding guarantee from ▇▇▇▇▇▇ 1 S.A. in respect of the
Guaranteed Obligations; the Beneficiary agrees that it will not institute
any proceedings in the Luxembourg courts or elsewhere in opposition to
the demerger or seeking to nullify the demerger and that it will not
institute any proceedings in the Luxembourg courts to obtain additional
guarantees as a consequence of the demerger on the basis of article 297
of the 1915 law.
5. PRESERVATION OF BENEFICIARY'S RIGHTS
5.1 PRESERVATION OF SECURITY AND RIGHTS: This deed is in addition to any
other right or security held by the Beneficiary at any time and shall not
merge with or prejudice or be prejudiced by any such right or security or
any other contractual or legal rights of the Beneficiary.
5.2 RELEASE CONDITIONAL Any release, settlement, discharge or arrangement
relating to the Guarantor's liability under this deed shall be
conditional upon no payment, assurance or security received by the
Beneficiary in respect of the Guaranteed Obligations being avoided or
reduced under any law relating to insolvency, and the Beneficiary may
after any such avoidance or reduction exercise all or any of its rights
under this deed and/or any other rights which it would have been entitled
to exercise but for such release, settlement, discharge or arrangement.
5.3 RESTRICTIONS ON GUARANTOR'S RIGHTS Until all claims of the Beneficiary in
respect of the Guaranteed Obligations have been discharged in full the
Guarantor shall not hold any security from Tewina without receiving the
Beneficiary's prior written consent.
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5.4 OTHER PAYMENT SOURCES The Beneficiary may obtain payment of the
Guaranteed Obligations from any source in any order without releasing or
reducing the liability of the Guarantor and may enforce this deed before
or after resorting to any such other means of payment.
6. PAYMENTS
6.1 DEDUCTIONS All payments by the Guarantor shall be made (1) in immediately
available funds to the credit of such account as the Beneficiary may
designate and (2) in full without any set-off, counterclaim or (except as
required by law) Tax or other deduction. If any such deduction is so
required, the Guarantor shall simultaneously pay to the Beneficiary such
amount as is necessary to ensure that the Beneficiary receives a net sum
equal to what it would have received had no deduction been made.
6.2 SET OFF The Beneficiary shall be entitled at any time or times without
notice (both before and after demand) to set off any liability of the
Guarantor to the Beneficiary against any liability of the Beneficiary to
the Guarantor (in either case whether actual or contingent, present or
future and irrespective of the branch or office, currency or place of
payment) and may for such purpose convert or exchange any currency.
6.3 APPROPRIATION The Beneficiary may (1) apply any payments received in
respect of the Guaranteed Obligations in or towards discharge of such
part of all or any of them as it thinks and (2) place any money received
under this deed to the credit of a securities realised account for so
long as it thinks fit without any obligation in the meantime to apply
such money in or towards discharge of any of the Guaranteed Obligations.
6.4 CURRENCY INDEMNITY If the Beneficiary at any time receives a payment
(including by set-off) in the wrong currency and the amount of the right
currency which it is able to buy (after deduction of any relevant costs)
with the amount received falls short of the amount payable in the right
currency, the Guarantor as a separate and independent obligation shall on
demand from time to time indemnify the Beneficiary against such shortfall
and pay Interest on such shortfall from the date of such receipt until
such shortfall is paid."
7. NOTICES
7.1 Any notice or other communication in respect of this Agreement may be
given in any manner set forth below to the address or number or in
accordance with the email details provided below and will be deemed
effective as indicated:
(A) if in writing and delivered in person or by courier, on the date
it is delivered;
(B) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible
form (it being agreed that the burden of proving receipt will be
on the sender and will not be met by a transmission report
generated by the sender's facsimile machine);
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(C) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail
is delivered or its delivery is attempted; or
(D) if sent by email, on the date that email is received,
unless the date of that delivery (or attempted delivery) or that receipt,
as applicable, is not a Business Day or that communication is delivered
(or attempted) or received, as applicable, after the close of business on
a Business Day, in which case that communication shall be deemed given
and effective on the first following day that is a Business Day.
7.2 Either party may by notice to the other change the address or facsimile
number or email details at which notices or other communications are to
be given to it.
7.3 The parties' respective notice and communication details for the purposes
of this Agreement are:
Party and title of
individual Address Facsimile no. Email
------------------ ------- ------------- -----
Beneficiary Trief Corporation (+352) 269255
SA c/o 3642
Attn. M. ▇▇▇ ▇▇▇▇▇▇▇▇ AMPG
BP 5014 L - 1050
Tel: (+352) 269255 Dommeldange
3297 Luxembourg
Guarantor
Att: TMF Management Locatellikade 1 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇-▇▇▇▇▇.▇▇▇
B.V., ▇/▇ ▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The Netherlands
7.4 Any notice to the Guarantor shall be copied to each of the following at
the details specified below (or at such other details as such person(s)
may notify in writing to the Beneficiary from time to time):
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
c/o Trader Classified Media ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
56 Route de Vandoeuvres Boston
1253 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: F. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
PROVIDED THAT failure to give any copy notice to any of the above persons
shall not invalidate the notice properly served on the Guarantor.
7.5 Any notice to the Beneficiary shall be copied to each of the following at
the details specified below (or at such other details as such person(s)
may notify in writing to the Guarantor from time to time):
Attn ▇. ▇▇▇▇▇▇ Descleves
Tel : (▇▇▇) ▇▇▇▇ ▇▇▇▇
Fax : (▇▇▇) ▇▇▇▇ ▇▇▇▇
PROVIDED THAT failure to give any copy notice to any of the above persons
shall not invalidate the notice properly served on the Beneficiary.
8. ASSIGNMENT
Neither party may assign or purport to assign all or any part of the
benefit of, or its rights or benefit under, this guarantee.
9. MISCELLANEOUS
9.1 EXERCISE OF RIGHTS: If the Beneficiary does not exercise a right or power
when it is able to do so this will not prevent it exercising that right
or power. When it does exercise a right or power it may do so again in
the same or a different manner. The Beneficiary's rights and remedies
under this Guarantee are in addition to any other rights and remedies
they may have. Those other rights and remedies are not affected by this
Guarantee.
9.2 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this agreement do not intend that any term of this
agreement should be enforceable, by virtue of the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇, by any person who is not a party to this
agreement.
9.3 INTEREST
The Guarantor guarantees to pay interest on any amount demanded under
this deed from the date of demand until payment to the Beneficiary.
Interest will be payable at the rate or rates agreed between the
Beneficiary and Tewina in respect of any corresponding Guaranteed
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Obligation or in the absence of agreement at the rate that is 2 per cent
per annum above the base rate of The Royal Bank of Scotland plc from time
to time. Interest payable by the Guarantor to the Beneficiary will accrue
(both before and after judgment) on a daily basis and on the basis of a
365 day year and will be compounded (both before and after judgment) in
each case according to the usual practice of the Beneficiary or, if there
is no such practice, quarterly.
10. COUNTERPARTS
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and
the same agreement and shall become effective when each of the parties
hereto shall by its duly authorised signatory have signed a counterpart
copy hereof (whether the same or different copies).
11. GOVERNING LAW
11.1 This Agreement shall be governed by and construed in accordance with the
laws of
England and Wales.
11.2 The parties irrevocably agree that the Courts of England are to have
non-exclusive jurisdiction to settle any disputes which may arise out of
or in connection with this Agreement and that accordingly any
proceedings, suit or action ("PROCEEDINGS") arising out of or in
connection with this Agreement may be brought in such courts. The parties
irrevocably waive any objection to such Courts being nominated and agree
not to claim that such Courts are not a convenient or appropriate forum.
The submission to the non-exclusive jurisdiction of the English Courts
shall not limit the rights of either party to take Proceedings against
the other in any other court of competent jurisdiction, nor shall the
taking of Proceedings in one jurisdiction preclude the taking of
Proceedings in any other jurisdiction if and to the extent permitted by
applicable law.
11.3 For the purposes of Clause 11.2, the Beneficiary appoints ▇ ▇ ▇▇▇▇▇▇
(Att. ▇▇▇▇▇ ▇▇▇▇▇▇▇) of ▇▇▇ ▇▇▇▇'▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ XF to act as its
agent for service of process in connection with any Proceedings and
undertakes promptly to notify the Guarantor if such person ceases to act
as its agent for service of process and to provide details of its
successor agent for service of process.
11.4 For the purposes of Clause 11.2, the Guarantor appoints Trusec Limited of
▇ ▇▇▇▇'▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ to act as its agent for service of
process in connection with any Proceedings and undertakes promptly to
notify the Beneficiary if such person ceases to act as its agent for
service of process and to provide details of its successor agent for
service of process.
EXECUTION AS A DEED
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Executed as a deed by ▇▇▇▇▇▇ S.A. ) /s/ ▇▇▇▇▇ ▇▇▇▇
) ---------------------------
acting by ) TMF Corporate Services S.A.
)
who, in accordance with the laws of the ) /s/ ▇▇▇▇ ▇▇▇▇▇▇
territory in which ▇▇▇▇▇▇ S.A. is ) ---------------------------
incorporated, is acting under the authority ) TMF Corporate Services S.A.
of ▇▇▇▇▇▇ S.A. ) (Authorised signatory(ies))
Executed as a deed by TRIEF )
CORPORATION S.A
) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
acting by ) ---------------------------
)
who, in accordance with the laws of the ) (Authorised signatory(ies))
territory in which TRIEF CORPORATION )
S.A is incorporated, is acting under the )
authority of TRIEF CORPORATION S.A )
