OF THE AVERAGE
COST SAVINGS PURSUANT TO SECTION 5.4(A), THE CALCULATION OF THE AVERAGE COST
SAVINGS WITH RESPECT TO SUCH MEASUREMENT DATE SHALL BE FINAL FOR ALL PURPOSES
RELATED TO THIS AGREEMENT.
(E)
AVERAGE COST SAVINGS TARGETS.
IN THE EVENT THAT MONACO NOTIFIES
INTERNATIONAL THAT IT BELIEVES IN GOOD FAITH THAT THE AVERAGE COST SAVINGS WAS
LESS THAN AS MUTUALLY AGREED UPON BY THE PARTIES FOR (I) THE FIRST MEASUREMENT
DATE OR (II) FOR ANY SUBSEQUENT MEASUREMENT DATE ((I) OR (II), AS APPLICABLE, AS
ADJUSTED FROM TIME TO TIME AFTER THE TWENTY-FOUR-MONTH ANNIVERSARY OF THE
CLOSING BY THE BOARD OF DIRECTORS IN ACCORDANCE WITH SECTION 5.4(A) HEREOF, THE
"GOAL") AS OF ANY MEASUREMENT DATE, THE MEMBERS SHALL CONSULT WITH EACH OTHER AS
TO COMMERCIALLY REASONABLE ACTIONS WHICH THEY OR THE COMPANY SHOULD CONSIDER TO
ADDRESS THE SITUATION.
WITHOUT LIMITING THE FOREGOING, INTERNATIONAL SHALL
CONSIDER, DEPENDING UPON THE RESULTS ACHIEVED FROM EARLIER ACTIONS AND SUCH
OTHER FACTORS THAT INTERNATIONAL CONSIDERS RELEVANT, WHETHER IT WILL TAKE ONE OR
MORE OF THE FOLLOWING ACTIONS:
19
(I)
CONVENE MEETINGS WITH SUPPLIERS IN ORDER TO SEEK FURTHER PRICE
CONCESSIONS RELATED TO COMPONENTS USED BY THE COMPANY;
(II)
DELIVER WRITTEN COMMUNICATIONS TO SUPPLIERS, WHERE APPLICABLE,
REGARDING CONSOLIDATION EFFORTS / EXPECTATIONS OF SUPPORT AND/OR DENOTE
SUPPLIERS' LACK OF SUPPORT, WHERE APPLICABLE, ON SUPPLIER SCORE CARDS;
(III)
INITIATE AND PRIORITIZE (AT INTERNATIONAL'S EXPENSE) A VAVE
EFFORT WITH RESPECT TO THE PRODUCTION PROCESSES OF THE COMPANY; AND/OR
(IV)
DISCUSS THE POSSIBILITY OF CHANGING THE PRICES AT WHICH
INTERNATIONAL WOULD AGREE TO SELL ENGINES TO THE COMPANY.
In the event that the Company achieves Average Cost Savings of less than Goal as
of (A) each Measurement Date during the nine (9) months following the date on
which Monaco provided notice pursuant to Section 5.12(e) (such period, the "Cure
Period") and (B) the date on which the Cure Period ends, Monaco shall have the
right to dissolve the Company pursuant to Section 7.1(b).
The calculation of
the Average Cost Savings at the end of the Cure Period shall be subject to the
dispute resolution procedures set forth in Section 5.8.
(F)
LIMITATION.
DISSOLUTION OF THE COMPANY IN ACCORDANCE WITH ARTICLES V AND
VII SHALL BE THE SOLE REMEDY OF THE PARTIES IN THE EVENT THAT ANY PARTICULAR
LEVELS OF AVERAGE COST SAVINGS ARE NOT REALIZED.
THE PARTIES UNDERSTAND AND
ACKNOWLEDGE THAT (1) INTERNATIONAL IS NOT GIVING ANY GUARANTEE OR ASSURANCE AS
TO ITS ABILITY TO EXTEND ITS PRICING AND TERMS FOR COMPONENT PARTS TO THE
COMPANY, (2) INTERNATIONAL SHALL NOT BE REQUIRED TO AGREE TO HIGHER PRICING OR
LESS ADVANTAGEOUS SUPPLY TERMS FOR ITS TRUCK, ENGINE, CHASSIS OR OTHER BUSINESS
UNITS IN ORDER TO INCLUDE THE COMPANY IN ITS PURCHASING ARRANGEMENTS, OR TO SELL
ENGINES TO THE COMPANY AT ANY PARTICULAR PRICING LEVEL, (3) NEITHER
INTERNATIONAL NOR MONACO SHALL BE REQUIRED TO AGREE TO ANY CHANGE IN THE DESIGN
OR MANUFACTURING OF ITS CHASSIS (INCLUDING ANY "MAKE VERSUS BUY" DECISION) IF IT
CONCLUDES IN GOOD FAITH THAT STRATEGIC, SAFETY OR