EXHIBIT 2.1
DATED: JANUARY 22, 1998
------------------------
(1) XXXXX INDUSTRIES PLC AND OTHERS
(2) PRESTOLITE ELECTRIC LIMITED AND OTHERS
(3) PEI HOLDING INC.
U M B R E L L A A G R E E M E N T
-----------------------------------
relating to the
Sale and Purchase of Xxxxx'
Electrical Products Business in
England and companies in South Africa and Argentina
Eversheds
00 Xxxxxxx Xxxxxx,
Xxxxxxxxxx X0 0XX
Tel: 0000 000 0000
Fax: 0000 000 1583a
ID:BIRCORP 56175
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CONTENTS
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1. Definitions
2. Sale and Purchase of the Activity, the Shares and the Xxxxx Loan
3. Completion
4. Good Faith Provision
5. Holding Company Loan
6. Post Completion Covenants
7. Waiver
8. Notices
9. Costs
10. Entire Agreement
11. Survival of Certain Provisions
12. Governing Law
13. Guarantees
14. Announcements
15. Termination
16. Assignment
17. No Third Party Beneficiary
18. Authority
19. Restrictive Trade Practices Act
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SCHEDULE 1 Part 1 Details of the Vendors
Part 2 Details of the Purchasers
SCHEDULE 2 Ancillary Agreements
SCHEDULE 3 The Guarantee by the Purchaser Guarantor
SCHEDULE 4 The Guarantee by the Parent Vendor
SCHEDULE 5 Acton HDP Products Part Numbers
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THIS AGREEMENT is made on January 22, 1998
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BETWEEN
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(1) THE VENDORS Those companies whose names and registered offices are set
out in Schedule 1 part 1
(2) THE PURCHASERS Those companies whose names and registered offices are set
out in Schedule 1 part 2
(3) THE PURCHASER GUARANTOR PEI Holding Inc., a Delaware Corporation whose
principal place of business is at 0000 Xxxxxxxxxxxx Xxxxxxxxx, Xxx Xxxxx,
Xxxxxxxx 00000, XXX
RECITALS
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(A) The Subsidiary Vendor has agreed to sell the Activity and the Parent
Vendor has agreed to sell the Argentinean Shares, the Xxxxx Loan and the
South African Shares respectively to certain of the Purchasers on the
terms and conditions hereinafter appearing and on the terms of
respectively the English Sale Agreement, the Argentinean Sale Agreement
and the South African Sale Agreement. The Vendors and the Purchasers
have also agreed to enter into the Ancillary Agreements.
(B) The Parent Vendor has entered into the English Sale Agreement for the
purposes set out in the recitals to that Agreement.
(C) In consideration of the Vendors entering into this Agreement, the Sale
Agreements, those which are relevant of the Associated Documents and the
Ancillary Agreements (in order to sell the Activity, the Shares and the
Xxxxx Loan to the Purchasers and to regulate the relationship that will
exist between them after Completion), the Purchaser Guarantor has agreed
to guarantee performance by the
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Purchasers of their respective obligations hereunder, under each of the
Sale Agreements, each of the Associated Documents and under each of the
Ancillary Agreements in the manner hereinafter appearing.
(D) In consideration of the Purchasers and the Purchaser Guarantor entering
into this Agreement, the Sale Agreements, those which are relevant of the
Associated Documents and the Ancillary Agreements (in order to buy the
Activity, the Shares and the Xxxxx Loan and to regulate the relationship
that will exist between them after Completion), the Parent Vendor has
agreed to guarantee the obligations of the Vendors hereunder, under each
of the Sale Agreements, each of the Associated Documents and under each
of the Ancillary Agreements in the manner hereinafter appearing.
NOW THIS AGREEMENT WITNESSES as follows:-
1. DEFINITIONS
-- -----------
In this Agreement (which expression shall include the Recitals of and
Schedules to this Agreement) except where inconsistent with the subject
matter or context:-
1.1 The following words and expressions shall bear the following
meanings respectively:-
"the Ancillary Agreements" Those agreements in the Agreed
Terms listed in Schedule 2
"the Argentinean Sale Agreement" An agreement of even date herewith
made between the Parent Vendor (1)
Prestolite (2) and Prestolite
Newco (3) relating to the sale of
the Argentinean Shares and the
Xxxxx Loan
2
"the Argentinean Shares" The entire issued share capital of
Xxxxx Argentine Holdings, Inc., a
Delaware corporation and 1,393,139
of the issued shares in the
capital of Xxxxx Indiel Argentina
S.A.
"the Assets" The Assets the subject of the
English Sale Agreement (and as
defined therein)
"the Associated Documents" Each of the documents or
agreements (other than the
Ancillary Agreements) referred to
in the Sale Agreements which are
to be entered into or issued on
Completion of such Sale Agreements
including without limitation the
`A' Loan Notes, the `B' Loan Notes
and the `C' Loan Notes (as defined
in the Argentinean Sale Agreement)
"Completion" Completion of the sale and
purchase hereby agreed and agreed
pursuant to the Sale Agreements in
accordance with clause 3 and "the
Completion Date" shall be
construed accordingly.
"Effective Completion" Completion of all the Sale
Agreements and effective exchange
of the Ancillary
3
Agreements in
accordance with clause 3
"English Purchaser" Prestolite Electric Limited,
registered number 1189048
"English Sale Agreement" An Agreement of even date herewith
made between the Subsidiary Vendor
(1) the English Purchaser (2) and
the Parent Vendor (3) relating to
the sale and purchase of the
Activity and the Assets (as
defined in such agreement) in the
Agreed Terms
"the Entire Agreement Clauses" The provisions of each of Clause
10.1 of this Agreement, Clause 9
of the South African Sale
Agreement, Clause 10 of the
Argentinean Sale Agreement and
Clause 16 of the English Sale
Agreement
"the Holding Company Loan" The balance outstanding of the
long-term loan referred to in a
letter dated 16 June 1994 from
Standard Bank of South Africa
addressed to Xxxxx Industries
South Africa (Pty) Limited
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"the Xxxxx Group" Xxxxx Varity and any company which
is for the time being a Subsidiary
or Subsidiary Undertaking of
LucasVarity but excluding all the
companies whose shares (whether in
whole or in part) are to be sold
under the Sale Agreements
"Xxxxx Loan" The same meaning as is attributed
to that expression in the
Argentinean Sale Agreement
"LucasVarity" LucasVarity plc, registered number
3207774
"the Parent Vendor" Xxxxx Industries plc, registered
number 54802, one of the Vendors
"Prestolite" Prestolite Electric Incorporated,
a Delaware Corporation
"Purchaser's Group" The same meaning as is attributed
to that expression in each Sale
Agreement
"the Sale Agreements" The English Sale Agreement, the
Argentinean Sale Agreement and the
South African Sale Agreement taken
together
"the Shares" The Argentinean Shares and the
South African Shares taken together
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"the South African Sale Agreement" An agreement of even date herewith
made between the Parent Vendor and
Prestolite (2) relating to the
sale of the South African Shares
"the South African Shares" The entire issued share capital of
Xxxxx Holdings South Africa (PTY)
Limited
"Subsidiary" A subsidiary company within the
meaning of Section 736 Companies
Act 1985 wheresoever incorporated
"Subsidiary Undertaking" A subsidiary undertaking within
the meaning of in Section 258
Companies Act 1985 wheresoever
situate
"the Subsidiary Vendor" Xxxxx Limited, registered number
872948, one of the Vendors
1.2 References in this Agreement to statutes or any statutory provision
shall include any statutory modification, re-enactment or extension
thereof for the time being in force and any orders, regulations,
instruments or other subordinate legislation made thereunder provided
always that this shall not operate to increase the liability of the
parties hereunder.
1.3 In this Agreement:-
1.3.1 the masculine gender shall include the feminine and neuter and
the singular number shall include the plural and vice versa;
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1.3.2 references to persons shall include bodies corporate,
unincorporated associations and partnerships;
1.3.3 the expression "the Vendors" shall be construed as any one or
more of the Vendors or all of them as the context shall permit
and shall include their respective successors in title and
permitted assignees;
1.3.4 the expression "the Purchasers" shall be construed as any one or
more of the Purchasers or all of them as the context shall
permit and shall include their respective successors in title
and permitted assignees;
1.3.5 the headings contained in this document are inserted for
convenience only and shall not affect its construction;
1.4 Whenever a document is referred to as being "in the Agreed Terms" it
shall be in the form agreed and initialled by or on behalf of the
Vendors and the Purchasers.
1.5 Except where the contrary is stated, any reference herein to a clause or
Schedule or party is to a clause of or Schedule or party to this
Agreement and any reference within a clause or Schedule to a sub-clause,
paragraph or other sub-division is a reference to such sub-clause,
paragraph or other sub-division so numbered or lettered in that clause
or Schedule. 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.
1.6 Except where the context shall provide or imply to the contrary and
except in clause 6 where the definitions contained in that clause shall
apply to it alone words and expressions defined in each or any of the
Sale Agreements shall have the same meaning in this Agreement.
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2. SALE AND PURCHASE OF THE ACTIVITY THE SHARES AND THE XXXXX LOAN
-- ---------------------------------------------------------------
2.1 The relevant provisions of this Agreement and of each of the Sale
Agreements shall apply relating to the sale of in the case of the
English Sale Agreement the Activity and the Assets (as defined in such
Agreement) and in the case of each of the other Sale Agreements those
of the Shares as shall be relevant and in the case of the Argentinean
Sale Agreement the Xxxxx Loan. Accordingly in construing each of the
Sale Agreements the same shall be read and construed as incorporating
within it those provisions of this Agreement as shall be applicable to
it.
2.2 On the date of this Agreement the Vendors, the Purchasers and the
Purchaser Guarantor shall procure that each of the Sale Agreements is
entered into and exchanged by the parties thereto.
2.3 On the date of this Agreement the parties shall or, as the case may
be, shall procure that the Ancillary Agreements are entered into and
exchanged by the parties thereto.
3. COMPLETION
-- ----------
3.1 Subject as hereinafter provided (and notwithstanding the provisions of
each of the Sale Agreements relating to Completion) Completion shall
not occur of any of the Sale Agreements unless Completion shall occur
of all of them.
3.2 If all the Sale Agreements and all the Ancillary Agreements are not
entered into and exchanged in accordance with clause 2 the parties
shall not be obliged to complete any of them and the provisions of
clause 15 shall apply.
3.3 Following exchange of each of the Sale Agreements and each of the
Ancillary Agreements the parties shall and shall procure that:-
3.3.1 each of the Sale Agreements is completed in accordance with its
terms and on the basis that all matters and things required
to
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be done on completion of each such agreement are duly
performed;
3.3.2 each of the Ancillary Agreements is formally exchanged as a
binding agreement and, where relevant, completed.
The Sale Agreements, the Ancillary Agreements and all documents and
things delivered pursuant thereto (including monies paid by way of
Provisional Consideration as defined in each of the Sale Agreements
and by way of consideration for the Xxxxx Loan pursuant to the
Argentinean Sale Agreement) shall in each case be held to the order of
the party or parties delivering the same and in escrow so that their
terms do not come into force and effect until Effective Completion and
all payments made thereunder and hereunder will be held to the order
of the party making the payment until Effective Completion. Completion
shall only become effective in accordance with clause 3.4.
3.4 Effective Completion will take place when all matters and things
required to be done and monies required to be paid on completion of
each of the Sale Agreements and the provisions of clause 3.3.2. have
been done, paid and complied with (subject to the escrow arrangements
referred to in clause 3.3.) whereupon:-
3.4.1 the Sale Agreements and all documents delivered and payments
made pursuant thereto shall be released to the recipient and
the Sale Agreements and such other documents will come into
full force and effect in accordance with their respective
terms; and
3.4.2 the Ancillary Agreements will come into full force and effect
in accordance with their respective terms.
3.5 If any of the Sale Agreements is not completed in accordance with its
terms and in accordance with the provisions of this Agreement or if
any of the
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Ancillary Agreements is not exchanged and where relevant completed as
contemplated by this clause 3 (and notwithstanding that some of such
documents may have been completed and/or exchanged in accordance with
their respective terms) none of the parties to such documents shall be
obliged to complete any of them and the provisions of clause 15 shall
apply.
3.6 If Effective Completion has not occurred by midnight (London time) on
the date on which this Agreement is entered into then all the Sale
Agreements, all the Ancillary Agreements and this Agreement shall
lapse and be of no further force or effect and none of the parties
thereto shall have any claim against any other party.
4. GOOD FAITH PROVISION
-- --------------------
4.1 In light of the provisions of the Loan Notes (as defined in the
Argentinean Sale Agreement) but without prejudice to any of their
respective provisions the Purchasers shall and shall procure that each
Group Member (as so defined) shall treat the Parent Vendor fairly and
shall act in good faith with regard to the interests of the Parent
Vendor.
4.2 Without prejudice to the generality of the foregoing and without
prejudice to the provisions of either the `A' Loan Notes or `B' Loan
Notes (as so defined) (so that their provisions are and will remain
unaffected by the following provisions of this clause 4) the
Purchasers shall not and shall procure that no Group Member (as so
defined) shall participate in the implementation of any scheme,
arrangement or transaction or otherwise take any steps the effect of
which is to diminish EBITDA (as defined in the `C' Loan Note as
defined in the Argentinean Sale Agreement) in any year, reduce the
amount which would otherwise be payable under the Loan Notes or
otherwise frustrate or defeat the provisions of those Notes and the
intent and spirit which lies behind them provided always that the
Vendor accepts that nothing contained in this clause 4.2 shall prevent
the taking of any steps the effect and the only effect of which would
be to diminish EBITDA thereby reducing the amount which would
otherwise be payable under the
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`C' Loan Notes if the Purchasers are able to demonstrate to the
reasonable satisfaction of the Parent Vendor that the overriding and
principal purpose of the act which would otherwise constitute a breach
of this clause 4.2 is in the best commercial interests of the Group
and is reasonably necessary to secure the financial position of the
Group going forward and that an incidental effect of such over-riding
and principal purpose is a deleterious effect on EBITDA.
4.3 Without prejudice to any other provision of this Agreement and the
rights of the Parent Vendor hereunder where the Purchasers participate
or any Group Member participates in the implementation of any scheme,
arrangement or transaction the effect of which is to diminish EBITDA
in any year or reduce the amount which would otherwise be payable
under the `C' Loan Notes or otherwise takes any action which may
interfere with or be detrimental to the ability of the Group to
maximise EBITDA the Parent Vendor and the Purchasers will negotiate in
good faith with a view to agreeing an appropriate adjustment to EBITDA
or another appropriate arrangement so that the Parent Vendor is
compensated for any loss it suffers as a consequence of such
participation or action.
5. HOLDING COMPANY LOAN
-- --------------------
Prestolite and the Purchaser Guarantor shall procure that Xxxxx Holdings
South Africa (Pty) Limited discharges the Holding Company Loan in
accordance with its terms.
6. POST COMPLETION COVENANTS
-- -------------------------
6.1 In this clause 6 a "Competing Business" means any of the following:-
6.1.1 a trade or business of being engaged anywhere in the world in
designing and/or manufacturing and/or selling Acton HD
Products;
6.1.2 a trade or business of being engaged anywhere in the world in
designing and/or manufacturing Pty and Indiel Products and/or
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of being engaged in selling them to any customer in, or who
requires delivery in, or who any member of the Xxxxx Group
has good reason to believe intends to sell them in, the South
African Territory or Argentina and whether such sale is to
the OE Market, Original Equipment Service or the Aftermarket.
6.2 In this clause 6 the following expressions have the following meanings:-
"Activity" has the meaning given in the
English Sale Agreement
"Acton HD Products" means
(a) those starter motors and
alternators and components
thereof listed by type number
in part 1 of schedule 2 to the
English Sale Agreement
(b) those starter motors and
alternators and components
thereof not so listed which
were designed and/or
manufactured and/or assembled
and sold by the Activity
(including by transfer to LAO)
in the 2 years immediately
preceding Completion; and/or
(c) products which in terms of
functional specification and/or
application are interchangeable
with any of the products
referred to in sub-clauses (a)
or (b) above
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"Aftermarket" means the market for (a) spare and
replacement parts for components or
sub-assemblies comprised within the
products of Original Equipment
Manufacturers and (b) automotive
accessories but excludes Original
Equipment Service
"Assets" has the meaning given in the
English Sale Agreement
"Indiel" means Xxxxx Indiel Argentina S.A.
"Indiel Group" means "the Group" as defined in the
Argentinean Sale Agreement
"Xxxxx Exchange Programme" means the scheme operated by the
Subsidiary Vendor whereby the
Subsidiary Vendor or other members
of the Xxxxx Group supply to
customers of Xxxxx Group Companies
(inter alia) alternators and
starter motors ("Electrical
Exchange Units") remanufactured
from used Electrical Exchange Units
or occasionally supply such
customers new units as
remanufactured units. The
Electrical Exchange Units and their
LR numbers for 1997/8 are included
in the Xxxxx Catalogue XCB167A a
copy of which is annexed hereto
marked "Appendix A" and has been
initialled for identification
purposes by the parties to this
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Agreement. The range of Electrical
Exchange Units varies from time to
time as the vehicle parc changes
"Xxxxx Group" LucasVarity and (other than any of
the companies whose shares (whether
in whole or in part) are to be sold
under the Sale Agreements) any
company which is a Subsidiary or
Subsidiary Undertaking of
LucasVarity 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
"Xxxxx Turkey" means Xxxxx Elektrik Sanayi Ve
Ticaret AS, a Turkish company
"Xxxxx TVS" means Xxxxx TVS Limited, an Indian
company
"OE Market" means Original Equipment
Manufacturers in their capacity as
buyers of products for fitting as
original equipment
"Original Equipment means any manufacturer or assembler
-----
Manufacturer 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,
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motive power or stationary engines
or a manufacturer of components or
sub-assemblies to be fitted as
original equipment to such
vehicles, engines or similar
equipment
"Original Equipment Service" means the market for supplies of
spare and replacement parts to any
Original Equipment Manufacturer
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
"Pty" means Xxxxx Automotive South Africa
(Pty) Ltd
"Pty and Indiel means:-
Products"
(a) starter motors and alternators
and components thereof
manufactured and/or sold by
Indiel and/or Pty at
Completion or which were
manufactured and/or sold by
Indiel or any member of Indiel
Group and/or by Pty or any
member of the Pty Group at any
time in the 2 years
immediately preceding
Completion; and/or
(b) products which in terms of
functional specification
and/or application are
interchangeable with any of
the products referred
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to in sub-clause (a) above
"Pty Group" means "the Group" as defined in the
South African Sale Agreement
"Person" means any person, firm, company,
business, undertaking, entity,
concern or close corporation
"Purchaser's Group" means PEI Holding Inc., a Delaware
company, and any Company which is a
Subsidiary or Subsidiary
Undertaking of PEI Holding Inc 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
"South African Territory" means South Africa, Botswana,
Lesotho, Namibia and Swaziland
"Subsidiary" means a subsidiary company as
defined in section 736 of the
Companies Xxx 0000
"Subsidiary Undertaking" means a subsidiary undertaking as
defined in section 258 of the
Companies Xxx 0000
6.3 For the purposes of assuring to (a) the English Purchaser the full
benefit of the Activity and (b) the respective purchasers under the
Argentinean Sale Agreement and the South African Sale Agreement
respectively the full benefit of the respective businesses carried on by
each of Indiel and Pty and
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the goodwill in each of such businesses and in consideration of the
agreement of the English Purchaser to buy the Activity and the Assets
under the English Sale Agreement and in consideration of the
consideration referred to in clause 6.10 of this Agreement, the Vendors
and each of them covenants and undertakes in favour of the Purchaser
Guarantor for itself and as trustee for the Purchasers and each member of
the Purchaser's Group (including for the avoidance of doubt Indiel and
Pty) that they shall not and shall procure that no other member of the
Xxxxx Group will, either alone or in conjunction with or on behalf of any
other Person:-
6.3.1 subject to clause 6.4 for a period of 4 years from Completion
either on its own account or in conjunction with or on behalf of
any Person be (either directly or indirectly) engaged or (save as
the holder of shares or other securities in any company which are
quoted, listed or otherwise dealt in on a recognised stock
exchange or other securities market which confer not more than 5%
of the votes which could be cast at a general meeting of the
company concerned) concerned with or interested in any Competing
Business;
6.3.2 for a period of two years from Completion either on its own
account or in conjunction with or on behalf of any Person without
the prior written consent of the Purchaser Guarantor, which
consent shall not be unreasonably withheld or delayed, solicit or
endeavour to entice away any person who being an employee
employed by the Activity or any company in the Pty Group or the
Indiel Group at Completion is engaged in a senior or managerial
position where such employee remains employed by any member of
the Purchaser's Group and whether or not such person would commit
a breach of contract by reason of leaving service;
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6.3.3 subject to clause 6.4 for a period of 4 years from Completion
either personally or by any agent directly or indirectly either
on its own account or for any other Person solicit the custom of
any Person (who is not a member of the Xxxxx Group) in relation
to a Competing Business if such Person was at any time within
twelve months prior to or at the Completion Date a customer of
the Activity or Indiel or Pty whether or not such Person would
commit a breach of contract by reason of transferring business;
6.3.4 save as may be required by law or the regulations of the New York
Stock Exchange or the London Stock Exchange Limited for a period
of five years from Completion reveal to any Person or use or
exploit for its own benefit or for the benefit of any other
Person any of the trade secrets, secret or confidential
operations, processes or dealings or any other confidential
information concerning the Activity or Indiel or Pty including
(without limitation) customer lists and names, sales targets and
statistics, market share statistics, surveys and reports so far
as the same have come to the Vendors' knowledge or to the
knowledge of any other member of Xxxxx Group before Completion
but so that this restriction shall:-
6.3.4.1 cease to apply to information which otherwise than
through default of any member of the Xxxxx Group becomes
available to the public generally;
6.3.4.2 not prevent or restrain any member of the Xxxxx Group
from using, exploiting or disclosing such confidential
information when the information to be used, exploited
or revealed relates not only to the Activity or to
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the business of Pty or Indiel but also to any trade or
business existing at Completion of any member of the
Xxxxx Group and such use, exploitation or revelation is
to be made exclusively in relation to such business and
without reference to the Activity or Indiel or Pty.
6.4 Nothing in clause 6.3 shall prevent or restrict the Xxxxx Group or any
==========
member of it, either alone or in conjunction with or on behalf of any
other Person:-
6.4.1 from continuing to hold shares in, to control or to acquire
further shares in Xxxxx TVS and nothing in this Agreement shall
prevent or restrict Xxxxx TVS from continuing to carry on any of
its businesses as they exist at Completion, nor from developing
any such businesses or any business of a similar type. The Vendors
and Purchaser Guarantor agree that Xxxxx TVS may continue to
export products, and to expand and develop its exporting business
(but not into Argentina or the South African Territory in relation
to Pty and Indiel Products) without restriction save only that
before any such expansion or development which the Vendors
reasonably believe is material to any member of the Purchaser's
Group including but not limited to in relation to the Activity
they, or one of them, will notify the Purchaser Guarantor of the
same. The Vendors indicate to the Purchaser Guarantor that so far
as the Vendors are aware Xxxxx TVS has no current plans to launch
a major expansion of its exporting business and does not currently
intend to do so;
6.4.2 from continuing to hold shares in Xxxxx Turkey and nothing in this
Agreement shall prevent or restrict Xxxxx Turkey from
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continuing to carry on or developing any of its businesses as
they exist at Completion nor from developing any such businesses
or any business of a similar type (but not by way of exports into
Argentina or the South African Territory);
6.4.3 in whatever form it takes from continuing to own carry on and
developing any of its businesses anywhere in the world, which are
howsoever and whether directly or indirectly, engaged, concerned
with or interested in selling in the Aftermarket and/or to
Original Equipment Service (but not in the OE Market save as
expressly permitted by any of the other sub-clauses of this clause
6.4) starter motors and alternators or components thereof which
are not Acton HD Products other than the sale of Pty and Indiel
Products to any customer in, or who requires delivery in, or who
any member of the Xxxxx Group has good reason to believe intends
to sell the same, in Argentina or the South African Territory;
6.4.4 from continuing to carry on its business existing at Completion of
remanufacturing and selling starter motors and alternators for any
application nor from developing the same or any business of a
similar type (but not by way of exports into Argentina or the
South African Territory);
6.4.5 from continuing to carry on the activity existing at Completion of
selling new or remanufactured starter motors and alternators as
part of the Xxxxx Exchange Programme nor from developing such
business (but not by way of exports into Argentina or the South
African Territory) and in particular but without limiting the
generality of the foregoing from obtaining from any Person new
products which are equivalent to Acton HD Products having the part
numbers listed in Schedule 5 which have hitherto been obtained
from the Activity for sale as
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part of such Xxxxx Exchange Programme (but only where the same are
not hereafter continued to be acquired from a member of the
Purchaser's Group) but such new products so obtained shall not
exceed 7,000 units in aggregate in any 12 month period or such
greater number of units as the English Purchaser shall consent to,
such consent not to be unreasonably withheld (reasonableness to be
judged in the context of the above mentioned quantity);
6.4.6 from acquiring, holding or operating any business or the
shares or other securities of any company (including,
without limitation, shares which are quoted, listed or
otherwise dealt in on a recognised stock exchange or other
securities market) or group of companies or participating
in any joint venture:-
6.4.6.1 where the portion of the activities of such
business, company, group of companies or joint
venture which comprises a Competing Business is
not substantial to such entity as a whole; and
6.4.6.2 where the principal purpose of such acquisition or
participation is not to acquire or participate in
a Competing Business,
provided that:
(a) the relevant member of the Xxxxx Group shall, within 12
months after acquiring any such business, company or
group of companies offer to sell at market value to the
Purchaser Guarantor such incidental part which is a
Competing Business; and
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(b) the Purchaser Guarantor and such member of the Xxxxx
Group shall negotiate in good faith with a view to
agreeing to the terms for such sale (but shall not be
obliged to conclude such sale if mutually acceptable
terms cannot be agreed); and
(c) where the Competing Business to be offered to the
Purchaser Guarantor under the foregoing provisions of
this clause has annual sales in excess of 25% of the
aggregate annual sales of the Purchaser's Group the
Vendors and the Purchaser Guarantor shall, if they are
able to agree the market value for the same and other
terms and conditions relating to any proposed sale to
the Purchaser Guarantor, negotiate in good faith with a
view to agreeing deferred terms for payment of some or
all of the price (but the relevant member of the Xxxxx
Group shall not be obliged to conclude any such sale if
mutually acceptable terms cannot be agreed) it being
agreed that the offer by the Purchaser Guarantor to
issue to the Vendors, or one of them, a 5 year level
amortising in years 2-5 note bearing interest at the
rate per annum which is 2% above Barclays Bank plc's
base lending rate from time to time or 12% per annum
whichever is the higher on the date on which such note
is issued shall (but subject to what follows) be deemed
an acceptable form of deferred payment but such note
shall only be acceptable provided that the Purchaser
Guarantor is able to provide in respect of such note
security which is acceptable (in both form and
substance) to the Vendors, or one of them, and the
Vendors are satisfied with the Purchaser Guarantor's
ability to meet its obligations under the Note.
22
6.4.7 from carrying on any of the activities in the capacity and
to the extent as contemplated by the Ancillary Agreements
or any of them or from enjoying or exercising any benefits
or rights granted to any member of the Xxxxx Group pursuant
to such Ancillary Agreements;
6.4.8 from continuing to carry on the business existing at
Completion of the provision of a contract repair service in
respect of starter motors and alternators of all types to
fleet operators and vehicle repairers nor from developing
the same or any business of a similar type (but not in
Argentina or the South African Territory) provided that
this provision shall not grant any rights to do anything
which would infringe the intellectual property rights
acquired by the Purchaser's Group (including any owned at
Completion by Indiel or Pty) from the Vendors pursuant to
the Sale Agreements;
6.4.9 subject to the provisions of the Ancillary Agreements, from
licensing or entering into any agreement or other
arrangement whatsoever relating to its trademarks or other
intellectual property provided that subject as aforesaid
and subject to the other provisions of clause 6.4 of this
Agreement neither the Vendors nor any member of the Xxxxx
Group shall grant any licence under any of its trade marks
or other intellectual property to use or exploit the same
in circumstances where the licensee is or is to become
(either directly or indirectly) engaged, concerned with or
interested in a Competing Business;
6.4.10 from continuing to carry on the business as it exists at
Completion of the rewinding of stators, rotors and heavy
duty armatures nor from developing such business or any
business
23
of a similar type (but not by way of exports into Argentina
or the South African Territory);
6.4.11 from continuing to hold shares in, to control or to acquire
further shares in Xxxxx Aftermarket KK (a Japanese
corporation) or, subject to the provisions of the Ancillary
Agreements, from Xxxxx Aftermarket KK continuing to carry
on any of its businesses existing at Completion nor from
developing such businesses or any business of a similar
type but not by way of exporting into Argentina or the
South African Territory in relation to Pty and Indiel
Products or into any country in Europe in relation to Acton
HD Products provided that in relation to heavy duty starter
motors and alternators not so exported Xxxxx Aftermarket KK
shall only sell the same for Japanese applications by which
is meant for vehicles whose country of origin is in Asia or
whose original electrics equipment is of Asian origin;
6.4.12 from appointing a distributor in or for the South African
Territory, from supplying that distributor in the South
African Territory with starter motors and/or alternators
and/or components thereof (not being heavy duty products or
components thereof), to which, or to the packaging of
which, the name or trade xxxx "Xxxxx" shall have been
applied ("Xxxxx Branded Products") and from granting such
distributor the right to sell such Xxxxx Branded Products
in the South African Territory, if at the time of such
appointment, supply, or grant no member of the Purchaser's
Group is an exclusive distributor appointed by any member
of the Xxxxx Group in or for the South African Territory in
respect of any starter motors or alternators;
24
6.4.13 from appointing a distributor in or for Argentina, from
supplying that distributor in Argentina with starter motors
and/or alternators and/or components thereof (not being
heavy duty products or components thereof), to which, or to
the packaging of which, the name or trade xxxx "Xxxxx"
shall have been applied ("Xxxxx Branded Products") and from
granting such distributor the right to sell such Xxxxx
Branded Products in Argentina, if at the time of such
appointment, supply, or grant no member of the Purchaser's
Group is an exclusive distributor appointed by any member
of the Xxxxx Group in or for Argentina in respect of any
starter motors or alternators;
6.4.14 from continuing to carry on the business as it exists at
Completion of manufacturing and/or selling to the
Aftermarket and the OE Market rectifiers and regulators
being components for alternators nor from developing such
business but not by way of exports to Argentina or the
South African Territory other than to Indiel or Pty save
that Xxxxx or any member of the Xxxxx Group shall be
entitled to make sales of such rectifiers and regulators to
the OE Market which may result in alternators incorporating
such rectifiers or regulators being exported by third
parties to Argentina or the South African Territory.
6.5
6.5.1 The Vendors hereby agree that each of the restrictions
contained in clause 6.3 above is reasonable and necessary
==========
for the protection of the Purchaser Guarantor's and the
Purchasers' proprietary interests in the Activity and its
goodwill and in Pty and Indiel and the goodwill in relation
to their respective businesses but if any such restriction
shall be
25
found by a competent court to be void or voidable at the
option of the Vendors, or any of them, but would be valid
and enforceable if some part thereof were deleted or the
period or the area of application of the restraint reduced
such restriction shall apply with such modification as may
be necessary to make it valid and enforceable and not
voidable.
6.5.2 Without prejudice to clause 6.5.1 if any restriction or
============
undertaking is found by any court or other competent
authority to be void, voidable or unenforceable the parties
shall negotiate in good faith to replace such void,
voidable or unenforceable restriction or undertaking with a
valid provision which has materially the same or similar
legal and commercial effect as such void, voidable or
unenforceable undertaking or restriction as the case may be
which it replaces.
6.6 Each undertaking contained in clause 6.3 shall be construed to impose a
==========
separate independent and severable undertaking in respect of each year
(or part thereof), each locality within the relevant territory, each
category of customers, each capacity in which the Xxxxx Group is
prohibited from acting and each activity in respect of which the Xxxxx
Group is restrained and if any one or more of such undertakings is held
to be against the public policy or unlawful or in any way an unreasonable
restraint of trade, the remaining undertakings shall continue in full
force and effect and shall bind the Vendors.
6.7 For the purposes of this clause 6 only the submission to the jurisdiction
========
of the courts referred to in clause 12 shall neither (and shall not be
=========
construed so as to) limit the right of the parties hereto to bring
proceedings with respect to this clause 6. in any other court of
competent jurisdiction nor shall ========= the institution of proceedings
in any one or more jurisdictions preclude the institution of proceedings
in any other jurisdiction (whether concurrently or not) of and to the
extent permitted by applicable law.
26
6.8 The parties further agree regarding the interpretation and enforcement of
this clause 6:-
6.8.1 with respect to enforcement on behalf of Indiel and the Indiel
Group and for matters pertaining to Argentina, that any dispute
will be resolved as provided under Section 20.4 of the Argentinean
Sale Agreement (Arbitration Provisions) and the law of Argentina
shall govern such interpretation and enforcement; and
6.8.2 with respect to matters pertaining to Pty, the Pty Group or the
South African Territory, that the High Court of South Africa shall
have non-exclusive jurisdiction with respect to such matters and
the law of the Republic of South Africa shall govern such
interpretation and enforcement; and
6.8.3 with respect to interpretation and enforcement on behalf of the
English Purchaser the provisions of clause 12 of this Agreement
shall apply.
6.9 The parties agree that with respect to the provisions of clause 6.3
above, the Purchaser Guarantor is acting as trustee for each member of
the Purchaser's Group and accepts the benefits conferred in terms of this
clause 6 on behalf of each member of the Purchaser's Group and further
that each such member shall be entitled to enforce the benefits and
exercise the rights conferred on them in terms of this clause 6.
6.10 It is hereby acknowledged and agreed that:-
(a) a portion of the purchase price for the Argentinean Shares, and
(b) a portion of the purchase price for the South African Shares
27
shall be in consideration for the covenants given by the Vendors
under this Agreement for the benefit of the Indiel Group and the Pty
Group respectively.
7. WAIVER
-- ------
No waiver by any party to this Agreement of any of the requirements of
this Agreement or any of its rights hereunder shall have effect unless
given in writing and signed by or on behalf of the party giving the
waiver and no delay by any party in exercising any of its rights
hereunder shall impair the same. No single or partial exercise of any
right or remedy shall preclude any further exercise thereof or the
exercise of any other right.
8. NOTICES
-- -------
8.1 The addresses for service of the parties to this Agreement shall
be:-
8.1.1 in the case of the Vendors and each of them the registered
office of the Subsidiary Vendor in the United Kingdom from
time to time and shall be addressed to:-
The Legal Director - Xxxxx
Electrical and Electronic Systems; and
8.1.2 in the case of each of the Purchaser Guarantor and the
Purchasers -Prestolite Electric Incorporated, 0000
Xxxxxxxxxxxx Xxxxxxxxx, Xxx Xxxxx, XX00000, XXX -
attention Xxx Xxxxxxx.
8.2 Any notice will be deemed well served on the party to whom it is
addressed if it be served personally or by courier delivery
addressed to such party at its address for service and service
shall be deemed to be effective upon such personal or courier
delivery taking place.
8.3 Any notices or statements to be served pursuant to this Agreement
may be sent by facsimile process
28
8.3.1 in the case of notices to the Vendors or any of them to
the Legal Director - Xxxxx Electrical and Electronic
Systems; fax: 0000 000 0000 or to such other fax number as
may be notified to the Purchaser Guarantor and the
Purchasers for the purposes of this clause 8.3; and
8.3.2 in the case of notices to the Purchaser Guarantor and the
Purchasers or any of them to Xxx Xxxxxxx; fax: (313) 913
6655 or to such other fax number as may be notified to the
Vendors for the purposes of this clause 8.3.2.
8.4 Any notice or statement so sent by facsimile process shall be
deemed to have been served at the expiration of 2 hours after the
time of despatch if despatched before 3.00 pm (local time at the
place of destination) on any Business Day and in any other case at
10.00 am (local time at the place of destination) on the Business
Day following the date of despatch provided that it is followed by
a hard copy of the notice or statement served on the recipient in
accordance with clause 8.2.
9. COSTS
-- -----
Save as otherwise provided herein or therein each party hereto shall bear
its own costs and expenses in connection with this Agreement each Sale
Agreement, the Associated Documents and the Ancillary Agreements and the
negotiations leading thereto.
10. ENTIRE AGREEMENT
--- ----------------
10.1 This Agreement, each Sale Agreement, the Ancillary Agreements and
the documents referred to in it and them (including without
limitation the Associated Documents but excluding the Memorandum as
defined below) (collectively "the Transaction Documents and
individually "a Transaction Document"), contain the whole agreement
between the parties relating to the transactions contemplated by
such Documents and any other transactions or matters related to them
and supersede all previous
29
agreements between the parties relating to these transactions. Each
of the parties to this Agreement (including without limitation the
Purchaser Guarantor), each Sale Agreement, each Ancillary Agreement
and the Associated Documents acknowledges that it has not relied on
any pre-contractual representations warranties or other assurances
save for the Warranties (as defined in each Sale Agreement) the
Purchaser Assurances (as contained in each Sale Agreement) and the
Vendor Assurances (as contained in the English Sale Agreement) and
otherwise as expressly set out in any of the Transaction Documents.
Each party hereby agrees that it shall have no remedy against any
other party for any negligent or innocent misrepresentation made by
such other party in relation to such transactions prior to the
Transaction Documents being entered into except to the extent that
the same shall have been incorporated in any of such Transaction
Documents as a warranty representation or indemnity in which case
any claim in relation to the same shall be only on the basis of a
breach of the relevant Transaction Document or under the relevant
indemnity provision. Nothing in this clause 10.1 shall relieve any
party from any liability for representations made fraudulently.
10.2 Each of the Purchasers and the Purchaser Guarantor hereby agrees and
acknowledges for itself and for and on behalf of each member of the
Purchaser's Group that the Purchaser Guarantor and each member of
the Purchaser's Group are solely responsible for the contents of the
debt offering memoranda issued by Prestolite on 2 January 1998 and
16 January 1998 (together "the Memorandum") and that:-
10.2.1 none of them has relied on any representation warranty
assurance or other statement made by or on behalf of any
member of the Xxxxx Group in preparing and issuing the same;
10.2.2 none of them shall have any remedy or right of action against
any member of the Xxxxx Group for any negligent or innocent
30
misrepresentation made by any such member in relation to the
Memorandum;
10.2.3 if any person shall make any claim against any member of the
Xxxxx Group or any of their respective officers, directors,
employees, agents, successors or assigns (each an
"Indemnified Person") by reason of or resulting from or which
arises out of or otherwise relates or is attributable to the
despatch and/or publication of the Memorandum and/or the
offer and sale of the securities offered and sold pursuant to
the Memorandum and/or such Memorandum not containing all
information which it is required by law or regulation to
contain or any statement (including without limitation any
statement of opinion or belief to whomsoever ascribed or by
whomsoever given) therein being or being alleged to be
untrue, inaccurate, incomplete or misleading or having been
made negligently or otherwise without the required standard
of skill and care the Purchaser Guarantor and each of the
Purchasers shall and each of them shall indemnify the Parent
Vendor for itself and for and on behalf of and as trustee for
each Indemnified Party and hold each of them harmless from
and against any and all liabilities losses damages claims
costs and expenses interest awards judgments and penalties
(including without limitation attorneys consultant and
arbitration fees and expenses) suffered incurred or sustained
by an Indemnified Person or to which an Indemnified Person
becomes subject;
10.2.4 nothing in this clause 10.2 shall relieve any member of the
Xxxxx Group from any liability for representations made
fraudulently or from any liability it may otherwise have
under any warranty or indemnity given pursuant to or other
obligation under any of the Transaction Documents;
31
10.2.5 the Memorandum shall not constitute a Transaction Document
for the purposes of each of the Entire Agreement Clauses and
none of such Clauses shall operate so as to prevent the
provisions of this Clause 10.2 applying to the fullest extent
possible.
11. SURVIVAL OF CERTAIN PROVISIONS
--- ------------------------------
This Agreement shall remain in force and effect after the Completion Date
in respect of any matters covenants or conditions which shall not have been
done observed or performed prior thereto notwithstanding Completion.
12. GOVERNING LAW
--- -------------
This Agreement shall be governed by English Law and the parties hereby
submit to the non-exclusive jurisdiction of the English Courts. The
submission to the jurisdiction of the courts referred to in this clause
shall neither (and shall not be construed so as to) limit the right of the
parties hereto to bring proceedings with respect to this agreement in any
other court of competent jurisdiction nor shall the institution of
proceedings in any one or more jurisdictions preclude the institution of
proceedings in any other jurisdiction (whether concurrently or not) of and
to the extent permitted by applicable law.
13. GUARANTEES
--- ----------
13.1 The Purchaser Guarantor guarantees to the Vendors in the terms set
out in Schedule 3.
13.2 The Parent Vendor guarantees to the Purchasers in the terms set out
in Schedule 4.
14. ANNOUNCEMENTS
--- -------------
No announcement concerning the transactions contemplated by this or any
Sale Agreement any Ancillary Agreement or any Associated Document or any
matter ancillary to them and no disclosure of the terms of this or any Sale
or other such
32
Agreement or Associated Documents shall (save as required by
law or the regulations of the London Stock Exchange or the New York Stock
Exchange) be made by any party except with the prior written approval of
the Subsidiary Vendor on behalf of the Vendors and the Purchaser Guarantor
on behalf of the Purchaser.
15. TERMINATION
--- -----------
In the event that all of the Sale Agreements and Ancillary Agreements are
not entered into and exchanged in accordance with clause 2 or all of the
Sale Agreements are not completed in accordance with clause 3:-
15.1 the parties thereto shall not be obliged to complete any of the Sale
Agreements or Ancillary Agreements or any of the Associated
Documents and each of such documents shall lapse and become null and
void and all rights and obligations in respect thereof shall cease
to have effect immediately save as may be expressly provided
therein;
15.2 the parties to all such documents shall immediately return any
signed copies of the same held by them and all other documents
delivered to them thereunder to the party delivering the same and
shall immediately repay all payments received by them thereunder to
the party making the same.
16. ASSIGNMENT
--- ----------
The benefit of this Agreement may not be assigned by either of the Vendors
without the prior written consent of the Purchaser Guarantor or by the
Purchaser Guarantor or the Purchasers without the prior written consent of
the Subsidiary Vendor save that any party may assign the benefit of this
agreement to any Subsidiary or Holding Company of it or to any other
Subsidiary of its Holding Company if such assignment does not increase the
liability of any party under this agreement. If at any time thereafter
such assignee shall cease to be so connected with such assignor it shall
prior to so ceasing reassign the benefit of this agreement to such
assignor.
33
17. NO THIRD PARTY BENEFICIARY
--- --------------------------
Except as otherwise provided in this Agreement this Agreement is intended
and agreed to be solely for the benefit of the parties hereto and their
permitted assigns and no third party shall accrue any benefit claim or
right of any kind whatsoever pursuant to under by or through this
Agreement.
18. AUTHORITY
--- ---------
18.1 Where in this Agreement there is any reference to the Vendors
serving any notice, taking any action, giving any instructions or
direction or reaching any agreement with the Purchasers, the
Purchaser Guarantor or any of them the Vendors irrevocably authorise
the Subsidiary Vendor to act on their behalf.
18.2 Where in this Agreement there is any reference to the Purchasers
serving any notice, taking any action, giving any instructions or
direction or reaching any agreement with the Vendors or any of them
the Purchasers irrevocably authorise Prestolite to act on their
behalf.
19. RESTRICTIVE TRADE PRACTICES ACT
--- -------------------------------
No provision of this Agreement, by virtue of which this Agreement is
subject to registration (if such be the case) under the Restrictive Trade
Practices Act 1976 shall take effect until the day after particulars of
this Agreement have been furnished to the Director General of Fair Trading
pursuant to Section 24 of the Restrictive Trade Practices Act. For this
purpose the expression "this Agreement" includes any agreement or
arrangement of which this Agreement forms part and which is registrable or
by virtue of which this Agreement is registrable.
34
SCHEDULE 1
----------
Part 1
DETAILS OF THE VENDORS
Xxxxx Limited whose registered office is at Stratford Road, Solihull, West
-------------
Midlands
XXXXX INDUSTRIES PLC whose registered office is also at Stratford Road,
--------------------
Solihull, West Midlands
XXXXX DIESEL DO BRASIL LTDA of Rodovia Xxxxxx Xxxxxxx, KH30, Caixa Postal 14,
---------------------------
00000-000 Xxxxx, Xxx Xxxxx, Xxxxxx
Part 2
DETAILS OF THE PURCHASERS
PRESTOLITE ELECTRIC INCORPORATED, a Delaware Corporation whose principal place
--------------------------------
of business is at 0000 Xxxxxxxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxx 00000 XXX
PRESTOLITE ELECTRIC LIMITED whose registered office is at Xxxxxxxxx Xxxx,
---------------------------
Xxxxxxx, Xxxxxxx, Xxxxxxxxxx XX0 0XX
XXXXX INDIEL ARGENTINA XX, Xx00, Fo248, No 25, Registro Publico de Commercio of
-------------------------
the Province of San Xxxx, Argentina
XXXXX AUTOMOTIVE (PTY) LIMITED, registration number 05/32211/07 of 5 Yaron
------------------------------
Avenue, Xxx Xxxx, Florida, Transvaal, South Africa
PRESTOLITE NEWCO INC., a Delaware Corporation whose principal place of business
----------------------
is at 0000 Xxxxxxxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxx 00000 XXX
35
SCHEDULE 2
----------
THE ANCILLARY AGREEMENTS
------------------------
Distribution Agreement for South Africa between (1) Xxxxx Limited and (2)
Xxxxx Automotive (Pty) Limited
Distribution Agreement for Argentina between (1) Xxxxx Limited and (2)
Xxxxx Indiel Argentina S.A.
South African Supply Agreement between (1) Xxxxx Limited and (2) Xxxxx
Automotive (Pty) Limited
Supply and Distribution Agreement for South America (excluding Argentina)
between (1) Xxxxx Indiel Argentina S.A. and (2) Xxxxx Diesel do Brasil Ltda
Acton Trade Xxxx Licence between (1) Xxxxx Industries plc and (2)
Prestolite Electric Limited
Argentina Trade Xxxx Licence between (1) Xxxxx Industries plc and (2) Xxxxx
Indiel Argentina X.X.
XXX Sale and Transition Agreement between (1) Xxxxx Limited and (2)
Prestolite Electric Limited
Marketing Services Agreement between (1) Xxxxx Limited and (2) Prestolite
Electric Limited
Overarching Agreement between (1) PEI Holding Incorporated (2) Xxxxx
Industries plc (3) Xxxxx Limited and (4) Prestolite Electric Limited
Licence of Intellectual Property relating to In-Line Diesel Pumps between
(1) Xxxxx Limited and (2) Prestolite Electric Limited
36
In-Line Diesel Pumps Supply Agreement between (1) Xxxxx Limited and (2)
Prestolite Electric Limited.
Side Letter from Xxxxx Industries plc to Xxxxx Automotive (Pty) Ltd
concerning use of Trade Marks under the Supply Agreement
Side Letter from Xxxxx Industries plc to Xxxxx Indiel Argentina SA
concerning use of Trade Marks under the Supply Agreement.
Side Letter from Xxxxx Aftermarket Operations to Prestolite Electric
Limited concerning H.D.E units required for Xxxxx Exchange Unit Programme.
Side Letter from Xxxxx Industries plc to Xxxxx Automotive (Pty) Limited
concerning sales to Xxxxx Ricambi
Side Letter from Xxxxx Industries plc to Prestolite Electric Incorporated
relating to calculation of EBITDA in certain circumstances
Side Letter from Xxxxx Limited to Prestolite Electric Incorporated relating
to Xxxx Xxxxx
Side Letter from Prestolite Electric Incorporated to Xxxxx Limited relating
to conversion of US $ to (Pounds)Sterling
37
SCHEDULE 3
----------
GUARANTEE BY THE PURCHASER GUARANTOR
------------------------------------
1. In consideration of the Vendors entering into this Agreement, each Ancillary
Agreement, each Sale Agreement and each Associated Document the Purchaser
Guarantor irrevocably and unconditionally:-
1.1 guarantees to the Vendors and each of them the due and punctual payment
observance and performance by the Purchasers and each of them of all
its and their respective liabilities and obligations whether present or
future, express or implied, actual or contingent under or arising out
of this Agreement, each Ancillary Agreement, each Sale Agreement and
each Associated Document including any liability or obligation to pay
damages;
1.2 undertakes with the Vendors and each of them that whenever the
Purchasers or any of them fails to pay or perform when due any of the
liabilities or obligations referred to in clause 1.1 it will on demand
by the Vendors from time to time pay, perform or procure the
performance of any and all of the same;
1.3 in addition to the obligations contained in clauses 1.1 and 1.2 and
separate from them agrees to indemnify the Vendors and each of them in
full on demand against any loss or damage or any liability (which
liability will include all losses or costs claims expenses or damages
including legal and other professional fees and expenses) which the
Vendors or any of them may suffer or incur directly or indirectly;
1.3.1 arising out of or as a result of or in connection with any
failure for any reason of the Purchasers or any of them to pay,
observe or perform any of the obligations referred to in this
clause 1 when due; and
38
1.3.2 in enforcing protecting or preserving or seeking to enforce
protect or preserve any of the Vendors rights under this
Agreement, any Ancillary Agreement, any Sale Agreement or any
Associated Document.
2. None of the Vendors will be obliged before exercising any of the rights
powers or remedies conferred upon it and them in respect of the Purchaser
Guarantor under this guarantee or by law;
2.1 to make demand of the Purchasers or any of them; or
2.2 to enforce or seek to enforce any claim right or remedy against the
Purchasers or any of them or any other person; or
2.3 to make or file any claim in connection with the insolvency of the
Purchasers or any of them or any other person; or
2.4 to take any action or obtain judgement in any court against the
Purchasers or any of them or any other person; or
2.5 to enforce or seek to enforce any other security, indemnity, guarantee
or lien taken in respect of any of the obligations of the Purchaser
Guarantor under this guarantee.
3. Neither the liability of the Purchaser Guarantor under this guarantee nor
the rights powers and remedies conferred on the Vendors under this guarantee
or by law will in any way be released prejudiced diminished or affected by
any of the following:-
3.1 the granting of time or indulgence to or any compromise with or
agreement not to xxx the Purchasers or any of them the Purchaser
Guarantor or any other person or the Vendors abstaining from proving or
enforcing payment of any dividend or composition;
3.2 the Vendors not giving the Purchaser Guarantor notice of any default by
the Purchasers or any of them or of any action taken by the Vendors;
39
3.3 any variation made in any of the terms of this Agreement, any Ancillary
Agreement, any Sale Agreement or any Associated Document whether the
same is made with or without the assent or knowledge of the Purchaser
Guarantor;
3.4 the Vendors obtaining or failing to obtain or perfect any other
guarantee or security (whether contemporaneously with this Agreement,
any Ancillary Agreement, any Sale Agreement or any Associated Document
or not) or the modification, variation, renewal, release, termination
or discharge by the Vendors of any security or guarantee now or
hereafter held from the Purchasers or any of them or any other person
(including any signatory to this Agreement, any Ancillary Agreement,
any Sale Agreement or any Associated Document in respect of the
liabilities and obligations referred to in clause 1.1;
3.5 any defect in or the unenforceability of any security or guarantee
given by or on behalf of the Purchasers or any of them or any other
person in respect of any of the liabilities and obligations referred to
in clause 1.1;
3.6 any invalidity, illegality, unenforcability, irregularity or
frustration in any respect of any of the liabilities or obligations
referred to in clause 1.1; and
3.7 any act omission or circumstances which but for this clause 3 might
operate to prejudice, affect or otherwise diminish the liability of the
Purchaser Guarantor under clause 1 or any of the rights powers or
remedies conferred upon the Vendors or any of them under clause 1 or by
law.
4. This guarantee is a continuing guarantee and will remain in full force and
effect until all the liabilities and obligations referred to in clause 1
have been irrevocably paid and satisfied in full.
5. Without prejudice to the Vendors rights against the Purchasers and each of
them as principal debtor the Purchaser Guarantor agrees as a separate and
independent stipulation that any liabilities or obligations referred to in
clause 1.1 which may not be
40
recoverable on the footing of a guarantee (whether by reason of any legal
limitation, disability or incapacity on or of the Purchasers or any of them
or any other fact or circumstance) or which are or become illegal, voidable,
unenforceable, discharged by any insolvency or irrecoverable (and whether or
not known to the Vendors or the Purchaser Guarantor or any other person)
will nevertheless be recoverable from and enforceable against the Purchaser
Guarantor as sole or principal debtor in respect thereof and will be paid or
performed by the Purchaser Guarantor on demand.
41
SCHEDULE 4
----------
GUARANTEE BY THE PARENT VENDOR
------------------------------
1. In consideration of the Purchasers or any of them entering into this
Agreement, each Ancillary Agreement each Sale Agreement and each Associated
Document the Parent Vendor irrevocably and unconditionally:-
1.1 guarantees to the Purchasers and each of them the due and punctual
payment observance and performance by the Vendors and each of them of
all its and their respective liabilities and obligations whether
present or future, express or implied, actual or contingent under or
arising out of this Agreement, each Ancillary Agreement, each Sale
Agreement and each Associated Document including any liability or
obligation to pay damages;
1.2 undertakes with the Purchasers and each of them that whenever the
Vendors or any of them fails to pay or perform when due any of the
liabilities or obligations referred to in clause 1.1 it will on demand
by the Purchasers from time to time pay, perform or procure the
performance of any and all of the same;
1.3 in addition to the obligations contained in clauses 1.1 and 1.2 and
separate from them agrees to indemnify the Purchasers and each of them
in full on demand against any loss or damage or any liability (which
liability will include all losses or costs claims expenses or damages
including legal and other professional fees and expenses) which the
Purchasers or any of them may suffer or incur directly or indirectly;
1.3.1 arising out of or as a result of or in connection with any
failure for any reason of the Vendors or any of them to pay,
observe or perform any of the obligations referred to in this
clause 1 when due; and
1.3.2 in enforcing protecting or preserving or seeking to enforce
protect or preserve any of the Purchasers' rights under this
42
Agreement, any Ancillary Agreement any Sale Agreement or any
other Associated Document.
2. None of the Purchasers will be obliged before exercising any of the rights
powers or remedies conferred upon it and them in respect of the Parent
Vendor under this guarantee or by law;
2.1 to make demand of the Vendors or any of them; or
2.2 to enforce or seek to enforce any claim right or remedy against the
Vendors or any of them or any other person; or
2.3 to make or file any claim in connection with the insolvency of the
Vendors or any of them or any other person; or
2.4 to take any action or obtain judgement in any court against the Vendors
or any of them or any other person; or
2.5 to enforce or seek to enforce any other security, indemnity, guarantee
or lien taken in respect of any of the obligations of the Parent Vendor
under this guarantee.
3. Neither the liability of the Parent Vendor under this guarantee nor the
rights powers and remedies conferred on the Purchasers under this guarantee
or by law will in any way be released prejudiced diminished or affected by
any of the following:-
3.1 the granting of time or indulgence to or any compromise with or
agreement not to xxx Vendors or any of them or any other person or the
Purchasers abstaining from proving or enforcing payment of any dividend
or composition;
3.2 the Purchasers not giving the Parent Vendor notice of any default by
the Vendors or any of them or of any action taken by the Purchasers;
43
3.3 any variation made in any of the terms of this Agreement, any Ancillary
Agreement, any Sale Agreement or any Associated Document whether the
same is made with or without the assent or knowledge of the Parent
Vendor;
3.4 the Purchasers obtaining or failing to obtain or perfect any other
guarantee or security (whether contemporaneously with this Agreement,
any Ancillary Agreement any Sale Agreement or any Associated Document
or not) or the modification, variation, renewal, release, termination
or discharge by the Purchasers of any security or guarantee now or
hereafter held from the Vendors or any of them or any other person
(including any signatory to this Agreement, any Ancillary Agreement or
any Sale Agreement or any Associated Document) in respect of the
liabilities and obligations referred to in clause 1.1;
3.5 any defect in or the unenforcability of any security or guarantee given
by or on behalf of the Vendors or any of them or any other person in
respect of any of the liabilities and obligations referred to in clause
1.1;
3.6 any invalidity, illegality, unenforcability, irregularity or
frustration in any respect of any of the liabilities or obligations
referred to in clause 1.1; and
3.7 any act omission or circumstances which but for this clause 3 might
operate to prejudice, affect or otherwise diminish the liability of the
Parent Vendor under clause 1 or any of the rights powers or remedies
conferred upon the Purchasers or any of them under clause 1 or by law.
4. This guarantee is a continuing guarantee and will remain in full force and
effect until all the liabilities and obligations referred to in clause 1
have been irrevocably paid and satisfied in full.
5. Without prejudice to the Purchasers rights against the Vendors as principal
debtor the Parent Vendor agrees as a separate and independent stipulation
that any liabilities or obligations referred to in clause 1.1 which may not
be recoverable on the footing of a guarantee (whether by reason of any legal
limitation, disability or incapacity on or of
44
the Vendors or any of them or any other fact or circumstance) or which are
or become illegal, voidable, unenforceable, discharged by any insolvency or
irrecoverable (and whether or not known to the Purchasers or the Parent
Vendor or any other person) will nevertheless be recoverable from and
enforceable against the Parent Vendor as sole or principal debtor in respect
thereof and will be paid or performed by the Parent Vendor on demand.
45
SIGNED BY XXXXX XXXX-LEATHER ) /s/ Xxxxx Xxxx-Leather
----------------------
as duly authorised attorney )
for and on behalf of )
XXXXX LIMITED )
Xxxxx Xxxx-Leather as attorney for Xxxxx Limited
SIGNED BY XXXXX XXXX-LEATHER ) /s/ Xxxxx Xxxx-Leather
----------------------
as duly authorised attorney )
for and on behalf of )
XXXXX INDUSTRIES PLC )
Xxxxx Xxxx-Leather as attorney for Xxxxx Industries plc
SIGNED BY XXXXX XXXX-LEATHER ) /s/ Xxxxx Xxxx-Leather
----------------------
as duly authorised attorney )
for and on behalf of XXXXX DIESEL DO )
BRASIL LTDA )
Xxxxx Xxxx-Leather as attorney for Xxxxx Diesel Do
Brasil LTDA
PEI HOLDING INC.
By: /s/ P. Xxx Xxxxxxx
--------------------
Name: P. Xxx Xxxxxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
PRESTOLITE ELECTRIC INCORPORATED
By: /s/ P. Xxx Xxxxxxx
------------------
Name: P. Xxx Xxxxxxx
Title: President
46
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice-President
SIGNED by P. Xxx Xxxxxxx ) /s/ P. Xxx Xxxxxxx
------------------
duly authorised for and on behalf of )
PRESTOLITE ELECTRIC )
LIMITED )
Director
SIGNED by Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
As attorney in fact for )
and on behalf of )
XXXXX INDIEL ARGENTINA S.A )
SIGNED by Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
duly authorised for and on behalf of )
XXXXX AUTOMOTIVE (PTY) )
LIMITED )
PRESTOLITE NEWCO, INC.
By: /s/ P. Xxx Xxxxxxx
------------------
Name: P. Xxx Xxxxxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
47
