EXHIBIT 10.16
DATED JANUARY 22, 1998
----------------------
(1) ▇▇▇▇▇ INDUSTRIES PLC
(2) ▇▇▇▇▇ INDIEL ARGENTINA S.A.
________________________________
TRADE ▇▇▇▇ LICENCE
ARGENTINA
________________________________
THIS AGREEMENT is made the 22nd day of January, 1998
BETWEEN ▇▇▇▇▇ INDUSTRIES PLC, an English Company whose registered office is at
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (Registered No 54802) ("the Grantor") of the
one part and ▇▇▇▇▇ INDIEL ARGENTINA S.A. of Calle III entre 3y l bis - Parque
Industrial Zona Norte 5700 San ▇▇▇▇ (Pcia San ▇▇▇▇) - ▇.▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
("the Licensee") of the other part.
WHEREAS:
A. The Grantor owns certain trade marks in the Territory (as defined below).
B. The Licensee wishes to use such trade marks in connection with the Products
(as defined below).
NOW IT IS HEREBY AGREED as follows:
1. GENERAL
-- -------
1.1 Punctuation and headings used in this Agreement are for the
purpose of easy reference or reading only and shall not affect
its interpretation.
1.2 The Schedules form part of this Agreement and shall have the same
force and effect as if expressly set out in the body of this
Agreement.
1.3 Words used herein importing the singular number shall, where the
context so admits or requires, be deemed to include the plural
and vice versa.
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1.4 References to "persons" shall include any person, firm, company,
association or body whether corporate or unincorporate.
2. DEFINITIONS
-----------
In this Agreement the following words and phrases shall have the
following meanings unless the context clearly requires otherwise:
2.1 Aftermarket
-----------
"Aftermarket" shall mean the market for (a) spare and
replacement parts for components and sub-assemblies comprised
within products of Original Equipment Manufacturers and (b)
automotive accessories but excludes Original Equipment Service;
2.2 Agreement Year
--------------
"Agreement Year" shall mean:
2.2.1 the period from the Effective Date until 31st December
1998;
2.2.2 every period of twelve (12) months beginning on 1st
January 1999 or on any 1st January in any year
thereafter during the life of this Agreement,
EXCEPT THAT should this Agreement terminate or expire on a day
other than 31st December in any year the final "Agreement Year"
shall be the period from 1st January last preceding the day of
termination or expiry to the day of termination or expiry;
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2.3 Argentinean Distribution Agreement
----------------------------------
"Argentinean Distribution Agreement" shall mean the agreement
made between ▇▇▇▇▇ Limited and ▇▇▇▇▇ Indiel Argentina S.A. and
having the same date as this Agreement;
2.4 Argentinean Supply and Distribution Agreement
---------------------------------------------
"Argentinean Supply and Distribution Agreement" shall mean the
agreement made between ▇▇▇▇▇ Indiel Argentina S.A and ▇▇▇▇▇ do
Brasil Ltda and having the same date as this Agreement;
2.5 Associated Companies
--------------------
"Associated Companies" shall mean any person which is either a
direct or indirect parent company or a subsidiary of the relevant
party or a subsidiary company of any such parent company or is
otherwise directly or indirectly controlled by, or is under the
same control, direct or indirect, as the relevant party from time
to time and at the time that the relevant clause in which such
expression appears has application, which where a claim is to be
made under the relevant clause shall mean when the cause of action
accrued under such clause;
2.6 Calendar Quarter
----------------
"Calendar Quarter" shall mean a three monthly period commencing on
the first day of any of the months of January April July and
October in any calendar year;
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2.7 Control
-------
"Control" shall mean in relation to any person the power of any
other person or persons to secure by law or by corporate structure
that the affairs of the first person are conducted in accordance
with the wishes of that other person or persons, and any cognate
word shall be construed accordingly;
2.8 Effective Date
--------------
"Effective Date" shall mean the date hereof;
2.9 Get Up
------
"Get-Up" shall mean the appearance of goods and/or their
packaging, including inter alia the size and shape of such
packaging, the materials, colour and decoration of the goods and
their wrappers, instructions for fitment and use and arrangement
of their labels;
2.10 Grantor's Standards of Quality
------------------------------
"Grantor's Standards of Quality" shall mean the standards of
quality applying at the date hereof to the manufacture of Products
and any reasonable standards specified or approved by the Grantor
at any time hereafter in connection with the quality of Marked
Products;
2.11 Half-Year
---------
"Half-Year" shall mean a six month period commencing on 1st
January and 1st July in each calendar year;
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2.12 ▇▇▇▇▇ Group
-----------
"▇▇▇▇▇ Group" shall mean the Grantor and LucasVarity plc and any
company or person which is under the Control of LucasVarity plc from
time to time and at the time that the relevant clause in which such
expression appears has application, which where a claim is to be
made under the relevant clause shall mean when the cause of action
accrued under such clause;
2.13 Marked Products
---------------
"Marked Products" shall mean Products manufactured or assembled or
sourced by the Licensee to which, or to the packaging of which, the
Trade Marks have been applied;
2.14 Non-Exclusive Right
-------------------
"Non-Exclusive Right" shall mean a right and licence enjoyed by the
Licensee in common with the Grantor and all other persons to whom
the Grantor has granted or the Grantor shall hereafter grant the
like right;
2.15 OE Market
---------
"OE Market" shall mean Original Equipment Manufacturers and Original
Equipment Service;
2.16 Original Equipment Manufacturer
-------------------------------
"Original Equipment Manufacturer" shall mean any manufacturer or
assembler of transport vehicles, engines or similar equipment
including, but not limited to, a manufacturer or assembler of motor
cars, vans, buses, coaches, forklifts, industrial vehicles, trucks,
tractors or marine, motive power or stationary engines or a
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manufacturer of components or sub-assemblies to be fitted as
original equipment to such vehicles, engines or similar equipment;
2.17 Original Equipment Service
--------------------------
"Original Equipment Service" shall mean the market for supplies of
spare and replacement parts to any Original Equipment Manufacturers
other than for fitting as original equipment or to any dealer of any
Original Equipment Manufacturer in its capacity as a dealer of such
Original Equipment Manufacturer;
2.18 Other Applications
------------------
"Other Applications" shall mean any use of the Trade Marks as at and
prior to the Effective Date by the Licensee in respect of any
application whatsoever other than on Products and Promotional
Material;
2.19 Products
--------
"Products" shall mean those products more particularly described and
set out in Schedule 1 together with any other product hereafter
introduced by the Licensee with the prior written consent of the
Grantor (such consent not to be unreasonably withheld) as an infill
to any range of products of which a Product in Schedule 1 forms
part;
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2.20 Promotional Material
--------------------
"Promotional Material" shall mean packaging, wrappers, leaflets,
brochures and other advertising material and instructions for
fitment and use relating to Marked Products;
2.21 Sale
----
"Sale" shall mean a sale or any other transaction by which the owner
of goods parts with the property in them or possession of them and
"Sell" and "Sold" shall have cognate meanings;
2.22 Sale and Purchase Agreement
---------------------------
"Sale and Purchase Agreement" shall mean the sale and purchase
agreement entered into between (1) the Grantor and (2) Prestolite
Electric Incorporated and (3) Prestolite Newco Incorporated for the
sale and purchase of the share capital of the Licensee dated with
the same date as this Agreement;
2.23 The Territory
-------------
"▇▇▇ ▇▇▇▇▇▇▇▇▇" shall mean Argentina;
2.24 The Trade Marks
---------------
"The Trade Marks" shall mean any one or more of the marks details of
which are set out in Schedule 2 and such other registrations by the
Grantor of the ▇▇▇▇ ▇▇▇▇▇ and the DIAGONAL DEVICE as are granted in
the Territory during the continuance of this Agreement which cover
the Products or some of them and which the Grantor shall stipulate
in writing to the Licensee shall become the subject of this
Agreement;
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2.25 Turnover
--------
"Turnover" shall mean the gross amount invoiced by the Licensee or
its Associated Companies for Marked Products reduced only by (a)
those taxes and duties for which the Licensee or such Associated
Companies act only as a collecting agency and which are levied by
the Government or other competent taxing authorities in the
Territory on the amount of such Marked Products invoiced and (b)
carriage and freight charges shown separately on such invoices and
(c) discounts shown on such invoice other than any discount for
prompt payment.
3. GRANT AND DURATION
3.1 The Grantor with effect from theEffective Date grants to the Licensee
a Non-Exclusive Right to use the Trade Marks in the Territory for the
markets and purposes set out in column 1 below for the period set
opposite such markets and purposes in column 2 below:
Column 1 Column 2
--------- -------------
On Products and Promotional Material From the Effective Date
for Products for the OE Market in the until 31st December ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇ Products and Promotional From the Effective Date until 31st
Material for Products December 2001
for the Aftermarket in the Territory
In respect of Other Applications 6 months from the Effective Date
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3.2 Subject to earlier termination under clause 10 this Agreement shall
expire on 31st December 2001.
3.3 The Licensee shall forthwith (1) on 31st December 1998 cease using
the Trade Marks on Products and Promotional Material for Products
for the OE Market in the Territory, (2) on 31st December 2001 cease
using the Trade Marks on Products and Promotional Material for
Products for the Aftermarket in the Territory (3) on the expiration
of six months from the Effective Date ensure that the Trade Marks
cease to be used for Other Applications. The Licensee shall ensure
that on the expiration of the respective periods the Trade Marks are
removed or obliterated in the case of the OE Market and the
Aftermarket from the Products and Promotional Material, and in the
case of Other Applications from all buildings, vehicles and other
things (other than Products and Promotional Material). The
provisions of clause 11.2 shall apply on the expiry or earlier
termination of this Agreement.
3.4 The Grantor confirms to the Licensee that the Grantor has not prior
to the date hereof granted to any other person any Non-Exclusive
Right to use the Trade Marks in the Territory in relation to any
goods which are equivalent to the Products and the Grantor will not
do so for as long as the Licensee shall not be in breach of the
provisions of this Agreement and in that event will not do so
without first discussing its intention to do so with the Licensee
provided that notwithstanding the foregoing provisions of this
clause 3.4 the Grantor shall be entitled to grant a Non-Exclusive
Right to the use of the Trade Marks to
3.4.1 a third party in the event that (i) the Grantor terminates
the Argentinean Distribution Agreement in accordance
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with its terms, or (ii) the Licensee no longer has the right
to be the exclusive distributor in the Territory of the
Grantor's products (as defined in this Argentinean
Distribution Agreement) pursuant to clause 6.3 of the
Argentinean Distribution Agreement and the Grantor wishes to
appoint such third party as a new or additional distributor
in the Territory provided that in either of these
circumstances the rights to be granted to such third party in
respect of the Trade Marks shall only be in relation to the
products as defined in the Argentinean Distribution
Agreement; or
3.4.2 a third party in the Territory from whom ▇▇▇▇▇ sources
products as defined in and the subject of the Argentinean
Supply and Distribution Agreement in circumstances where
under the terms of the Argentinean Supply and Distribution
Agreement ▇▇▇▇▇ has the express right to source such products
other than from the Licensee provided that in such
circumstances the rights granted to such third party in
respect of the Trade Marks shall be in relation to such
products only and such rights granted shall only subsist
while ▇▇▇▇▇ is entitled so to source from such third party;
or
3.4.3 a purchaser hereafter of any business within the ▇▇▇▇▇ Group
in respect of which business such Trade Marks are currently
so used.
3.5 If the Licensee at any time during the life of this Agreement wishes
to acquire and distribute in the Territory any alternator or starter
motor manufactured by ▇▇▇▇▇ Automotive (Pty) Limited ("Pty")
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which, or the promotional material relating to which, bear the trade
▇▇▇▇▇ ▇▇▇▇▇ and/or the ▇▇▇▇▇ Diagonal Device and which Pty is at the
relevant time licensed by the Grantor to use in relation to any such
alternator or starter motor the Licensee shall apply to the Grantor
for its prior written consent to such acquisition and distribution
which shall not be unreasonably withheld. The Grantor shall be
entitled to withhold such consent if at the time of seeking such
consent (a) Pty shall not be an Associated Company of the Licensee
or (b) both Pty and the Licensee shall not be under the Control
direct or indirect of PEI Holding Incorporated. If such consent is
given it shall be deemed withdrawn forthwith if (a) Pty shall at any
time cease to be an Associated Company of the Licensee or (b) at any
time both the Licensee and Pty are not under the Control direct or
indirect of PEI Holding Incorporated. Any such alternator or starter
motor or promotional material relating to the same shall on such
acquisition by the Licensee be deemed to be Products, Marked
Products and Promotional Material for the purposes of this Agreement
and dealt with as such and the earlier provisions of this clause 3
shall apply to them.
3.6 For the purposes of clause 4.1.2 but only while any consent given by
the Grantor pursuant to clause 3.5 remains in effect, the Grantor
agrees that the Licensee may Sell or offer for Sale Marked Products
to Pty and ship the same and any Promotional Material to Pty so that
Pty may sell and distribute the same pursuant to and in accordance
with any subsisting trade ▇▇▇▇ licence rights granted to it by the
Grantor.
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4. LICENSEE'S COVENANTS
--------------------
The Licensee covenants with the Grantor as provided in the following
sub-clauses of this clause 4:
4.1 Use of Marks
------------
The Licensee shall not use any of the Trade Marks for any
purpose or for any period beyond the scope of the licence
granted by clause 3 and in particular but without limiting the
generality of the foregoing:
4.1.1 shall not use any of the Trade Marks as the whole or
part of a corporate or other business name or in
relation to Products which do not comply with the
Grantor's Standards of Quality;
4.1.2 shall not Sell or offer for Sale Marked Products to a
customer or for delivery outside the Territory or to any
person within the Territory who the Licensee knows or
has good reason to believe intends to Sell Marked
Products to a customer or for delivery outside of the
Territory, otherwise than with the prior written consent
of the Grantor.
4.2 Observe Laws and Quality Standard
---------------------------------
The Licensee shall observe any laws and regulations affecting
Products in the Territory and shall comply with the Grantor's
Standards of Quality and in particular:
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4.2.1 shall use the Trade Marks only in the form and manner
directed or approved in writing by the Grantor and shall
ensure that all Get-Up and Promotional Material in
respect of Marked Products shall only be in forms
approved in writing by the Grantor and in connection
therewith shall permit inspection by the Grantor's
authorised representatives at any reasonable time by
prior arrangement of the operations, manufacture,
storage, and transport of the Products of or by the
Licensee or any sub-contractor of the Licensee;
4.2.2 in order to enable the Grantor to approve standards of
quality of Marked Products, shall deposit with the
Grantor at the Licensee's own expense and at the
Grantor's request a few samples of the Marked Products
as the Grantor may reasonably require from time to time;
4.2.3 in the event that there is any change in the
characteristics or quality of the Marked Products,
shall, before commencing commercial production of the
changed Marked Products, deposit with the Grantor at the
Licensee's own expense and at the Grantor's request a
few samples of the changed Marked Products as the
Grantor may reasonably require from time to time.
4.3 Remedy Defects
--------------
If at any time any Marked Products or the Get-Up or Promotional
Material do not, insofar as is material and recognising that
from time to time Marked Products may occasionally be made
which are
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defective, comply with the Grantor's Standards of
Quality the Grantor may give notice in writing of its
dissatisfaction and require the Licensee to take such remedial
action as the Grantor may reasonably direct. If within a period
of thirty (30) days after receipt of such notice the Licensee
has not taken such remedial action to the Grantor's reasonable
satisfaction the Grantor shall provide to the Licensee in
writing full particulars of those matters which the Grantor
reasonably considers still do not comply with the Grantor's
Standards of Quality and stating that if by the expiration of a
further 30 days the Grantor shall not have issued a letter
confirming its satisfaction with the Licensee's remedial action
then the Licensee will be in material breach of this Agreement;
4.4 Confusing Marks
----------------
The Licensee shall not use in its business in relation to
Products or any other products any other trade marks or
devices so resembling the Trade Marks as to be likely to cause
confusion or deception;
4.5 Royalties
---------
In respect of the use of the Trade Marks on Marked Products
(including those deemed to be Marked Products under clause 3.5
but so that Pty shall not be liable for royalty in respect of
the self same Products under Pty's trade ▇▇▇▇ licence rights)
Sold by the Licensee or its Associated Companies to the
markets or for the purpose set out in column 1 below a royalty
of the percentage rate specified in column 2 below shall be
paid by the Licensee in respect of Products invoiced during
the period specified in column 3 below:
Column 1 Column 2 Column 3
Market/Purpose Royalty Rate Period
-------------- ------------ ------
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OE Market in the Nil From the
Territory Effective Date
until 31st
December 1998
Aftermarket in the Nil From the
Territory Effective Date
until 31st
December 2000
Aftermarket in the 3% From 1st January
Territory 2001 to 31st
December 2001
Other Applications Nil Six months from
the Effective
Date
No royalty shall be payable by the Licensee (a) in respect of the
Sale of Marked Products which are sourced by the Licensee from the
▇▇▇▇▇ Group and (b) in respect of any Sale to Pty of alternators or
starter motors to which, or to the packaging of which, the Trade
Marks have been applied lawfully pursuant to this Agreement but so
that Pty shall be liable for any royalty in respect of the self same
Products under Pty's trade ▇▇▇▇ licence rights.
Where royalty is payable the amount to be paid will be such amounts
as after the deduction of all charges and taxes (other than
withholding tax lawfully imposed in the Territory) applicable
thereto in the Territory leave in the hands of the Grantor 3% of the
Turnover of such Products.
4.6 Records
-------
The Licensee shall keep at its usual place of business separate
records containing details of all Sales of Marked Products in each
Agreement Year and shall at the end of each Agreement Year and on
termination of this Agreement (howsoever arising) produce such
records to the duly authorised agents of the Grantor and permit them
to inspect the same and take copies thereof;
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4.7 Render Reports and Pay
----------------------
In respect of periods where no royalty is payable the Licensee shall
within 30 days of the end of each Half Year, and in respect of the
period where royalty is payable the Licensee shall within 30 days of
the end of each Calendar Quarter, deliver to the Grantor a complete
statement and account in writing of the Turnover during the
preceding Half Year or Calendar Quarter (as the case may be) and of
all royalties (where applicable) payable to the Grantor in respect
thereof and shall ensure that such statement is accompanied by
payment of the royalties shown (if any) thereon to be due;
4.8 Interest
--------
The Licensee shall pay interest to the Grantor on all overdue
amounts payable hereunder, such interest to be calculated and
compounded on a daily basis from the date when payment was due
(being the last day in the relevant month) at the annual rate of
four per centum (4%) above the base lending rate of Barclays Bank
plc in England until payment is made in full both before or after
any award or judgement;
4.9 Payment Disputes
----------------
In the event of any dispute between the Grantor and the Licensee as
to the amount of royalty due to the Grantor hereunder the Licensee
shall pay such sums as are not in dispute and shall pay the
remainder as soon as the amount has been agreed with the Grantor or
determined by award or judgement no longer subject to appeal
together with the interest calculated in accordance with the
provisions of sub-clause 4.8;
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4.10 Authority to Make Payment
-------------------------
4.10.1 If the Licensee is prohibited from making any of the
payments hereunder reserved without appropriate authority
then the Licensee will within the time for making the said
payments commence and diligently pursue all necessary steps
to secure from the proper authorities in the Territory
permission to make the said payments including all and any
interest due thereon and will make such payments within
seven (7) days of receiving such permission;
4.10.2 If however the Grantor shall have requested the Licensee so
to make the said payments notwithstanding the said
prohibition then the Licensee shall so far as the same may
be lawful pay the sums due into a bank account at a bank in
the Territory nominated by the Grantor until such time as
the said prohibition is removed whereupon the Licensee shall
forthwith take all steps required of it by the Grantor so as
to facilitate the remittance of all such sums including all
and any interest due thereon to the Grantor;
4.10.3 If the Licensee is prohibited from making any of the
payments due to the Grantor hereunder for two consecutive
Calendar Quarters the Grantor shall be entitled to terminate
this Agreement at any time after the end of the second
Calendar Quarter while any part of such payments remain
unpaid.
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4.11 Independent Contractor and Risk
-------------------------------
4.11.1 All aspects of the manufacture use and Sale of Marked
Products by the Licensee shall be at the Licensee's risk
and for the Licensee's account and the Licensee shall act
as an independent contractor and the Licensee shall
indemnify and hold the Grantor harmless against all actions
claims demands costs charges expenses and liability arising
out of or in connection with the manufacture use or Sale or
offer of Sale of Marked Products other than the Sale or
offer of Sale of Products to any member of the ▇▇▇▇▇ Group
but without prejudice to the rights of any such member
under any other agreement with the Licensee or at law and
save that such indemnity shall not apply to the extent that
any such action claim demand cost charge expense or
liability arises out of a defect in a Product design made
by ▇▇▇▇▇ or made by a third party at ▇▇▇▇▇' instigation.
4.11.2 The Licensee shall effect and maintain or cause another
Associated Company of the Licensee to effect and maintain
for its and the Associated Company's benefit full product
liability insurance relating to Marked Products with a
reputable insurer in an amount equal to not less than
US$10,000,000 for each and every event and in the aggregate
in any one year of insurance under such policy and shall
provide to the Grantor on request a copy of the policy and
proof of the payment of premiums.
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4.12 Local Laws
----------
The Licensee shall keep the Grantor informed of all laws,
orders or regulations made at any time by the Government or
any public or local authority within the Territory in any
way adversely affecting or in the Licensee's opinion likely
to adversely affect the terms of this Agreement or the
manufacture or Sale of Marked Products in the Territory.
5. MAINTAIN REGISTRATION
---------------------
5.1 Nothing in this Agreement shall oblige the Grantor to defend any
proceedings for the revocation of registration any of the Trade
Marks nor to bring any proceedings against an infringer of the
Trade Marks but should the Grantor decide that in order that
this Agreement may remain valid under the law of Argentina, or
otherwise in its absolute discretion, to defend or take any such
proceedings it shall do so at its own cost. The Licensee shall
in any case execute all documents and do all things reasonably
necessary at the Grantor's expense to enable the Grantor to
pursue any such proceedings provided that the Licensee shall not
be required to be joined as a party to any such proceedings.
5.2 The Licensee shall comply with applicable laws of the Territory
as to the registration and usage of trade marks which is
required in order to maintain the validity of the same and to
make the provisions of this Agreement valid between the parties
hereto and against third parties but nothing in this clause 5.2
shall require the Licensee to pay any renewal fees in relation
to the Trade Marks.
5.3 The Grantor and the Licensee shall if it is necessary to do so
in order to protect the registration of the Trade Marks use all
reasonable
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endeavours to have the Licensee recorded as the licensee
of the Trade Marks at the trade marks registry in the
Territory where the Trade Marks are registered and the Licensee
will, at the request of the Grantor execute all documents,
including a short form of this Agreement. All costs incurred
under the provisions of this clause 5.3 will be shared equally
by the Grantor and the Licensee.
5.4 The Licensee or the Grantor shall be entitled to notify the
registration or other authorities in the Territory of the expiry
or termination of this Agreement when this occurs.
6. OWNERSHIP OF TRADE MARKS
------------------------
6.1 The Licensee agrees that the ownership of the Trade Marks and
the goodwill relating thereto shall always remain vested in the
Grantor both during the period of this Agreement and thereafter
and that nothing herein shall give to the Licensee any right,
title or interest in the Trade Marks except the Non Exclusive
Right to use the Trade Marks in accordance with the terms of
this Agreement.
6.2 The Licensee undertakes not knowingly to do any act in relation
to the use of the Trade Marks pursuant to this Agreement which
will invalidate or jeopardise in any way the Grantor's rights in
the Trade Marks.
7. GRANTOR'S WARRANTY
------------------
The Grantor warrants that it does not know of any present or proposed
proceedings in the Territory concerning the Trade Marks but it does not
warrant that any Marked Products Sold or offered for Sale will not
infringe the rights of others.
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8. ASSIGNMENT
----------
8.1 The Licensee shall not have the power at any time to assign this
Agreement or to grant any sub-licence hereunder or in any way
charge mortgage or deal with all or any of the rights hereby
granted.
8.2 The Grantor shall have power to perform its covenants, to exercise
its rights and to accept benefits accruing to it under this
Agreement through the agency of any other company in the ▇▇▇▇▇
Group. References in this Agreement to the "Grantor" include its
successors and assigns.
9. SUPERVENING LAWS AND FORCE MAJEURE
----------------------------------
9.1 The rights and obligations of the parties under this Agreement
shall be subject to all applicable laws orders regulations
directions restrictions and limitations of governments or other
bodies having jurisdiction over the parties hereto.
9.2 If any such other law order regulation direction restriction or
limitation as aforesaid or any treaty or other international
agreement or the judicial construction of any of them shall after
the date of the execution hereof substantially alter the
relationship between the parties or the advantages derived from
such relationship then the parties shall on request from the
adversely affected party enter into bona fide negotiations directed
towards agreeing a modification to this Agreement to restore the
situation if practicable or to compensate for such alteration.
9.3 If there is any total or partial failure of performance hereunder
by either party occasioned by strikes, lockouts, combinations of
workmen or any cause whatsoever reasonably beyond the control of
the party thereby affected then once the cause has been notified by
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that party to the other such failure shall not be deemed to be a
breach of this Agreement which shall continue in suspense or part
performance for the period during which such cause exists. If such
suspension or partial performance exists for a period of more than
six (6) months and substantially affects the operation of this
Agreement then the party not claiming relief under this clause
shall be at liberty to terminate this Agreement on giving to the
other no less than forty-five (45) days written notice of its
intention to do so and this Agreement shall terminate on expiration
of such notice.
10. TERMINATION
-----------
10.1 The Grantor may terminate this Agreement summarily by written
notice to the Licensee if:
10.1.1 the Licensee passes a resolution for its winding up, or
an order is made for its winding up, or if a receiver or
administrator is appointed over its assets undertaking or
income or any part thereof, or the Licensee is otherwise
unable to pay its debts as they fall due or calls a
meeting formal or informal of its creditors or anything
similar or analogous happens to the Licensee in the
Territory; or
10.1.2 the Licensee fails to pay any sum due to the Grantor
under this Agreement within 7 days of written demand
being made by the Grantor; or
10.1.3 the Licensee assigns or sub-licences this Agreement or
purports so to do; or
10.1.4 Control of the Licensee or any direct or indirect parent
company of the Licensee is acquired by any person, or
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any Associated Company of such person, named in Schedule
3 in which event the Grantor shall be entitled to give
notice of termination within 3 months of becoming aware
of such change of Control, the Licensee undertaking to
notify the Grantor in writing of such change within 7
days of the same occurring; or
10.1.5 the Licensee commits a material breach of this Agreement
and fails to remedy it or to pay adequate compensation if
the breach cannot be remedied in either case within
thirty (30) days of being required to do so by the
Grantor; or
10.1.6 the Licensee challenges, contests or calls in question
the ownership of the Trade Marks; or
10.1.7 the Licensee ceases permanently to use the Trade Marks on
any Product and the Licensee shall be deemed to have so
ceased if during any Agreement Year (other than by reason
of clause 9.3) no Marked Products are Sold in any
Calendar Quarter, the Licensee undertaking to notify the
Grantor in writing of such circumstance within 14 days of
the end of the Calendar Quarter in question.
11. RESIDUAL RIGHTS AND OBLIGATIONS
-------------------------------
11.1 Termination of this Agreement shall be without prejudice to any
rights of either party against the other arising out of events
occurring on or before the date of such termination.
11.2 Upon termination or expiry of this Agreement the Licensee will
forthwith return to the Grantor at the Licensee's expense all
loose
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labels bearing the Trade Marks and, unless the Trade Marks
have been removed or obliterated therefrom, all stencils, casts,
dies, presses, screens and other tools and equipment in its
possession used for applying the Trade Marks so far as they have
been used exclusively for that purpose and will remove or
obliterate all such labels and other references to the Trade
Marks already affixed to Products and shall cease to use the
Trade Marks in any way including without limitation in respect of
Promotional Material.
11.3 The obligation on the Licensee to indemnify the Grantor set out
in sub-clause 4.11.1 shall continue indefinitely after
termination or expiry but except as set out in the preceding part
of this clause 11, all rights and duties of the parties under
this Agreement shall cease on its termination.
11.4 References in this clause 11 to "termination" mean termination
howsoever arising.
12. NOTICES
-------
All notices, reports, request, consents and statements allowed or
required to be given hereunder must be in writing in the English
language and be delivered by hand or despatched by registered mail, or
facsimile to the addresses shown below (provided that in the case of
despatch by facsimile proof of correct transmission must be obtained at
the time of despatch). A party may change its address by giving notice
in writing to the other of such change. A notice served by hand, or by
confirmed facsimile shall be deemed to be received at the moment of
transmission; a notice served by mail shall be deemed to be received on
the fifth day after it has been despatched to the recipient party
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Grantor: ▇▇▇▇▇ Industries plc
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
For the attention of: the Company Secretary
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Licensee: ▇▇▇▇▇ Indiel Argentina ▇.▇.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇ ▇ ▇ ▇▇▇
▇▇▇▇▇▇ Industrial Zone Norte
5700 San ▇▇▇▇
(Pcia. San ▇▇▇▇)
▇. ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇
Fax No: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
with a copy of the notice to be addressed to Managing Director
and Finance Director Prestolite Electric Limited ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
13. CURRENCY
--------
13.1 Any sums due and payable hereunder by a Licensee shall be
remitted by an authorised bank in the territory of the Licensee
and paid in US Dollars into the Grantor's account named ▇▇▇▇▇
Limited - ▇▇▇▇▇ Aftermarket Operation No. 1 Account ▇▇▇▇▇▇▇▇ at
Barclays Bank plc of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Under Lyme,
Staffordshire
25
Branch Sort Code 20-59-23 or to such other account of the
Grantor notified to the Licensee.
13.2 The conversion rate of one currency to any other currency shall
be at the official rate of the Central Bank in the Territory at
the close of business on, or (if such day shall not be a
business day of such Central Bank) on the business day last
preceding:
13.2.1 the date of authorisation in the case of any payment
which requires individual government authorisation, or
13.2.2 the date upon which payment becomes due in the case of
any royalty payment or interest thereon which does not
require individual government authorisation, or
13.2.3 the last day of the period in the case of any other
payment becoming due under this Agreement which does
not require individual government authorisation
14. ACTIONS FOR INFRINGEMENT
------------------------
14.1 The parties shall notify each other of any infringement within
the Territory of any of the Trade Marks or any passing off
coming to their notice and shall consult with each other about
what to do to deal with such infringements or passing off.
14.2 The Grantor shall have the conduct of all proceedings relating
to the Trade Marks and the Licensee shall not be entitled to
bring any action for infringement of the Trade Marks without
the prior written consent of the Grantor.
14.3 The Licensee shall promptly report to the Grantor particulars
of any use by any other person of a trade name, trade ▇▇▇▇ or
Get-Up of goods or mode of advertising which could deceive or
could be
26
calculated to deceive members of the trade or public into
thinking that such goods are or could be associated with, or
could harm trade in Marked Products Sold in the Territory.
14.4 The Grantor shall have the right (at its own expense) to bring
legal proceedings to prevent any person using any of the Trade
Marks in the Territory other than the Licensee in accordance
with this Agreement. The Licensee will at the Grantor's request
cost and expense do all things reasonably necessary to assist
the Grantor in such proceedings. Any monies received by the
Grantor in any such legal action instituted by it whether such
monies be received by way of damages or legal costs or
otherwise shall belong solely to the Grantor and the Licensee
shall otherwise have no right to share in any part of the same.
15. MISCELLANEOUS
-------------
15.1 This Agreement shall not be varied amended or supplemented
except by instrument in writing executed by the duly authorised
representatives of the parties.
15.2 The failure of any party hereto at any time to enforce the terms
provisions or conditions of this Agreement shall not be
construed as a waiver of the same or of the right of such party
to enforce the same.
15.3 Each undertaking in this Agreement shall be construed as a
separate undertaking and if one or more of the undertakings
contained in this Agreement is found to be unenforceable or in
any way an unreasonable restraint of trade the remaining
undertakings shall continue to bind the parties.
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16. LANGUAGE AND LAW
----------------
This Agreement is written in the English language and any differences as to
the construction and interpretation thereof shall be resolved in accordance
with English law and each party agrees to submit to the non-exclusive
jurisdiction of the English Courts as regards any claim or matter arising
under this Agreement.
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SIGNED by ▇▇▇▇▇ ▇▇▇▇-LEATHER ) /s/ ▇▇▇▇▇ ▇▇▇▇-Leather
------ ------------------ ----------------------
as duly authorised attorney for and ) ▇▇▇▇▇ ▇▇▇▇-Leather as
----------------------
on behalf of ▇▇▇▇▇ INDUSTRIES PLC ) attorney of ▇▇▇▇▇ Industries plc
-------------------- --------------------------------
SIGNED by P. ▇▇▇ ▇▇▇▇▇▇▇ )
------ --------------
as attorney in fact for and on behalf of ) /s/ P. ▇▇▇ ▇▇▇▇▇▇▇
------------------
▇▇▇▇▇ INDIEL ARGENTINA S.A. )
---------------------------
29