Common use of Selection of JV Dealers; Agreements with JV Dealers Clause in Contracts

Selection of JV Dealers; Agreements with JV Dealers. 11.3.1 Subject to the other provisions of this Section 11.3, the Company (not the Members) shall have the exclusive right to manage its JV Dealer relationships and, with Majority Consent of the Board, to appoint or terminate any JV Dealer selling or servicing JV Trucks and JV Truck Replacement Parts pursuant to sales and service agreements that the Company enters into with such JV Dealers. 11.3.2 If the Board determines by Majority Consent that the Company shall sell solely Caterpillar Truck Models in a given country, the JV Dealer in such country shall be a subsidiary of a Caterpillar dealer in such country; provided, that such subsidiary submits an application to the Company. If a Caterpillar dealer declines to form a subsidiary to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary of such Caterpillar dealer, the Board may, by Majority Consent, determine to seek applications to form a subsidiary to serve as the JV Dealer in such country from another Caterpillar dealer. 11.3.3 If the Board determines by Majority Consent that the Company shall sell solely Navistar Truck Models in a given country, the JV Dealer in such country shall be a subsidiary of a Navistar dealer in such country; provided, that such dealer submits an application to the Company. If a Navistar dealer declines to form a subsidiary to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary of such Navistar dealer, the Board shall seek applications to form a subsidiary to serve as the JV Dealer in such country from both Navistar dealers and Caterpillar dealers. 11.3.4 If the Board determines by Majority Consent that the Company shall sell both Caterpillar Truck Models and Navistar Truck Models in a given country: 11.3.4.1 A current Navistar dealer in such country, if any, shall be given a first right of refusal to form a subsidiary to serve as the JV Dealer in such country with respect to Navistar Truck Models; provided, that such dealer submits an application to the Company. If such Navistar dealer declines to form a subsidiary to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary of such Navistar dealer as the JV Dealer with respect to Navistar Truck Models in such country, a Caterpillar dealer in such country, as selected by the Board by Majority Consent, shall be given an opportunity to submit an application to the Company, as a preferred dealer, to form a subsidiary to serve as the JV Dealer with respect to Navistar Truck Models in such country. Notwithstanding the foregoing, in the event the Caterpillar dealer selected by the Board as a preferred dealer declines to form a subsidiary to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary of such Caterpillar dealer as the JV Dealer with respect to Navistar Truck Models in such country, the Board shall seek applications to form a subsidiary to serve as the JV Dealer with respect to Navistar Truck Models in such country from both Navistar dealers and Caterpillar dealers. 11.3.4.2 A current Caterpillar dealer in such country, if any, shall be given a first right of refusal to form a subsidiary to serve as the JV Dealer in such country with respect to Caterpillar Truck Models; provided, that such dealer submits an application to the Company. If such Caterpillar dealer declines to form a subsidiary to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary of such Caterpillar dealer as the JV Dealer with respect to Caterpillar Truck Models in such country, the Company shall seek applications to form a subsidiary to serve as the JV Dealer with respect to Caterpillar Truck Models in such country from another Caterpillar dealer (either in another territory of such country or in another country). 11.3.5 If the Board determines by Majority Consent that the Company shall sell both Caterpillar Truck Models and Navistar Truck Models in a given country in which there are no existing Navistar dealers at such time, no Caterpillar dealer (or any subsidiary or Affiliate thereof) shall be permitted to sell Caterpillar Truck Models unless such Caterpillar dealer also forms a subsidiary, which subsidiary agrees to serve as the JV Dealer in such country for Navistar Truck Models pursuant to the Company’s standard sales and service agreement. If such Caterpillar dealer declines to form a subsidiary to serve as the JV Dealer in such country for Navistar Truck Models, the Company shall seek applications from a Caterpillar dealer in another country to form a subsidiary to serve as such JV Dealer with respect to both Caterpillar Truck Models and Navistar Truck Models in such country. 11.3.6 Subject to applicable law, (a) the Company shall not select as a JV Dealer any Person in a given territory (other than an existing Navistar or Caterpillar dealer, as applicable, located in such territory) that serves as, or whose Affiliate serves as, a dealer of any third-party original equipment manufacturer (other than the Company) (a “Competitive OEM”) whose products and services are in competition with the products and services of the Company in such territory (such dealer, a “Competitive OEM Dealer”) without the Majority Consent of the Board, (b) in each instance where a Person selected by the Board as a JV Dealer, at the time of such selection, is not, and none of such Person’s Affiliates is, a Competitive OEM Dealer, the Board shall endeavor to include in the Company’s sales and service agreement with such Person a prohibition on such Person and its Affiliates from ever forming or acquiring a Competitive OEM Dealer, and (c) if the Board does, in fact, upon Majority Consent or pursuant to Sections 11.3.2, 11.3.3, 11.3.4, or 11.3.5, select as a JV Dealer a Person that serves as, or whose Affiliate serves as, a Competitive OEM Dealer, the Board shall endeavor to include in the Company’s sales and service agreement with such Person provisions that provide that such Person and its Affiliates sell the products of the Company (on the one hand) and the products of the Competitive OEM (on the other hand) in different locations and through different legal entities. 11.3.7 To the extent requested by the Company, each of Caterpillar and Navistar shall use its commercially reasonable efforts to encourage those of its existing dealers that demonstrate compliance with certain standards set by the Company to establish (a) a subsidiary to serve as a JV Dealer and (b) cause such JV Dealer to enter into sales and service agreements with the Company to distribute JV Trucks and JV Truck Replacement Parts. In any instance in which the Company appoints a single dealer to be a JV Dealer with respect to both Caterpillar Truck Models and Navistar Truck Models, the Company shall enter into separate sales and service agreements with such JV Dealer for the sale and service of Caterpillar Truck Models (on the one hand) and Navistar Truck Models (on the other hand). 11.3.8 The Company shall use its reasonable best efforts to enter into with each JV Dealer that sells Navistar Truck Models sales and service agreements in the forms agreed to by the Members (it being understood that each such agreement will permit sales and servicing of either (i) Medium Duty COX Xrucks or (ii) conventional (non-cab over engine) Medium Duty Trucks and all Heavy Duty Trucks, but not both). The Company will use its reasonable best efforts to enter into with each JV Dealer that sells Caterpillar Truck Models sales and service agreements in the forms agreed to by the Members (it being understood that each such agreement will permit sales and servicing of either (i) Medium Duty COX Xrucks or (ii) conventional (non-cab over engine) Medium Duty Trucks and all Heavy Duty Trucks, but not both). Without limiting the generality of the preceding sentence, each JV Dealer sales and service agreement shall contain provisions stipulating that (a) such agreement may be assigned by the Company to the Member whose branded JV Truck models are sold pursuant to such agreement without the consent of the JV Dealer, (b) such agreement may be terminated unilaterally by the Company with or without cause to the extent permitted, and pursuant to the process required, if any, under applicable law, (c) such JV Dealer shall be prohibited from selling (i) JV Trucks or JV Truck Replacement Parts to any military customer (without Navistar’s prior written consent) and (ii) JV Trucks or JV Truck Replacement Parts in contravention of the exclusivity and non-competition provisions of this Agreement, and (d) subject to applicable law, with respect to each such agreement with a Navistar-branded JV Dealer owned by a Caterpillar dealer, such agreement will automatically terminate upon the seventh (7th) anniversary of (i) the termination of this Agreement or (ii) the closing of any sale and purchase of the Membership Interest pursuant to the Buy-Out Interest Option or pursuant to the Buy/Sell Option (as provided in Section 21.6.4).

Selection of JV Dealers; Agreements with JV Dealers. 11.3.1 Subject to the other provisions of this Section 11.3, the Company (not the Members) shall have the exclusive right to manage its JV Dealer relationships and, with Majority Consent of the Board, to appoint or terminate any JV Dealer selling or servicing JV Trucks and JV Truck Replacement Parts pursuant to sales and service agreements that the Company or any of its Affiliates enters into with such JV Dealers. 11.3.2 If the Board determines by Majority Consent that the Company shall sell solely Caterpillar Truck Models in a given country, the JV Dealer in such country shall be a subsidiary an Affiliate of a Caterpillar dealer in such country; provided, that such subsidiary Affiliate submits an application to the Company. If a Caterpillar dealer declines to form a subsidiary an Affiliate to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary an Affiliate of such Caterpillar dealer, the Board may, by Majority Consent, determine to seek applications to form a subsidiary an Affiliate to serve as the JV Dealer in such country from another Caterpillar dealer. 11.3.3 If the Board determines by Majority Consent that the Company shall sell solely Navistar Truck Models in a given country, the JV Dealer in such country shall be a subsidiary an Affiliate of a Navistar dealer in such country; provided, that such dealer submits an application to the Company. If a Navistar dealer declines to form a subsidiary an Affiliate to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary an Affiliate of such Navistar dealer, the Board shall seek applications to form a subsidiary an Affiliate to serve as the JV Dealer in such country from both Navistar dealers and Caterpillar dealers. 11.3.4 If the Board determines by Majority Consent that the Company shall sell both Caterpillar Truck Models and Navistar Truck Models in a given country: 11.3.4.1 A current Navistar dealer in such country, if any, shall be given a first right of refusal to form a subsidiary an Affiliate to serve as the JV Dealer in such country with respect to Navistar Truck Models; provided, that such dealer submits an application to the Company. If such Navistar dealer declines to form a subsidiary an Affiliate to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary an Affiliate of such Navistar dealer as the JV Dealer with respect to Navistar Truck Models in such country, a Caterpillar dealer in such country, as selected by the Board by Majority Consent, shall be given an opportunity to submit an application to the Company, as a preferred dealer, to form a subsidiary an Affiliate to serve as the JV Dealer with respect to Navistar Truck Models in such country. Notwithstanding the foregoing, in the event the Caterpillar dealer selected by the Board as a preferred dealer declines to form a subsidiary an Affiliate to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary an Affiliate of such Caterpillar dealer as the JV Dealer with respect to Navistar Truck Models in such country, the Board shall seek applications to form a subsidiary an Affiliate to serve as the JV Dealer with respect to Navistar Truck Models in such country from both Navistar dealers and Caterpillar dealers. 11.3.4.2 A current Caterpillar dealer in such country, if any, shall be given a first right of refusal to form a subsidiary an Affiliate to serve as the JV Dealer in such country with respect to Caterpillar Truck Models; provided, that such dealer submits an application to the Company. If such Caterpillar dealer declines to form a subsidiary an Affiliate to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary an Affiliate of such Caterpillar dealer as the JV Dealer with respect to Caterpillar Truck Models in such country, the Company shall seek applications to form a subsidiary an Affiliate to serve as the JV Dealer with respect to Caterpillar Truck Models in such country from another Caterpillar dealer (either in another territory of such country or in another country). 11.3.5 If the Board determines by Majority Consent that the Company shall sell both Caterpillar Truck Models and Navistar Truck Models in a given country in which there are no existing Navistar dealers at such time, no Caterpillar dealer (or any subsidiary or Affiliate thereof) shall be permitted to sell Caterpillar Truck Models unless such Caterpillar dealer also forms a subsidiaryan Affiliate, which subsidiary Affiliate agrees to serve as the JV Dealer in such country for Navistar Truck Models pursuant to the Company’s standard sales and service agreement. If such Caterpillar dealer declines to form a subsidiary an Affiliate to serve as the JV Dealer in such country for Navistar Truck Models, the Company shall seek applications from a Caterpillar dealer in another country to form a subsidiary an Affiliate to serve as such JV Dealer with respect to both Caterpillar Truck Models and Navistar Truck Models in such country. 11.3.6 Subject to applicable law, (a) the Company shall not select as a JV Dealer any Person in a given territory (other than an existing Navistar or Caterpillar dealer, as applicable, located in such territory) that serves as, or whose Affiliate serves as, a dealer of any third-party original equipment manufacturer (other than the Company) (a “Competitive OEM”) whose products and services are in competition with the products and services of the Company in such territory (such dealer, a “Competitive OEM Dealer”) without the Majority Consent of the Board, (b) in each instance where a Person selected by the Board as a JV Dealer, at the time of such selection, is not, and none of such Person’s Affiliates is, a Competitive OEM Dealer, the Board shall endeavor to include in the Company’s sales and service agreement with such Person a prohibition on such Person and its Affiliates from ever forming or acquiring a Competitive OEM Dealer, and (c) if the Board does, in fact, upon Majority Consent or pursuant to Sections 11.3.2, 11.3.3, 11.3.4, or 11.3.5, select as a JV Dealer a Person that serves as, or whose Affiliate serves as, a Competitive OEM Dealer, the Board shall endeavor to include in the Company’s sales and service agreement with such Person provisions that provide that such Person and its Affiliates sell the products of the Company (on the one hand) and the products of the Competitive OEM (on the other hand) in different locations and through different legal entities. 11.3.7 To the extent requested by the Company, each of Caterpillar and Navistar shall use its commercially reasonable efforts to encourage those of its existing dealers that demonstrate compliance with certain standards set by the Company to establish (a) a subsidiary an Affiliate to serve as a JV Dealer and (b) cause such JV Dealer to enter into sales and service agreements with the Company or one of its Affiliates to distribute JV Trucks and JV Truck Replacement Parts. In any instance in which the Company appoints a single dealer to be a JV Dealer with respect to both Caterpillar Truck Models and Navistar Truck Models, the Company shall enter into separate sales and service agreements with such JV Dealer for the sale and service of Caterpillar Truck Models (on the one hand) and Navistar Truck Models (on the other hand). 11.3.8 The Company shall use its reasonable best efforts to enter into with each JV Dealer that sells Navistar Truck Models sales and service agreements in the forms heretofore agreed to by the Members (it being understood that each such agreement will permit sales and servicing of either (i) Medium Duty COX Xrucks XXX Trucks or (ii) conventional (non-cab over engine) Medium Duty Trucks and all Heavy Duty Trucks, but not both). The Company will use its reasonable best efforts to enter into with each JV Dealer that sells Caterpillar Truck Models sales and service agreements in the forms heretofore agreed to by the Members (it being understood that each such agreement will permit sales and servicing of either (i) Medium Duty COX Xrucks XXX Trucks or (ii) conventional (non-cab over engine) Medium Duty Trucks and all Heavy Duty Trucks, but not both). Without limiting the generality of the preceding sentence, each JV Dealer sales and service agreement shall contain provisions stipulating that (a) such agreement may be assigned by the Company to the Member whose branded JV Truck models are sold pursuant to such agreement without the consent of the JV Dealer, (b) such agreement may be terminated unilaterally by the Company with or without cause to the extent permitted, and pursuant to the process required, if any, under applicable law, (c) such JV Dealer shall be prohibited from selling (i) JV Trucks or JV Truck Replacement Parts to any military customer (without Navistar’s prior written consent) and (ii) JV Trucks or JV Truck Replacement Parts in contravention of the exclusivity and non-competition provisions of this Agreement, and (d) subject to applicable law, with respect to each such agreement with a Navistar-branded JV Dealer owned by Affiliated with a Caterpillar dealer, such agreement will automatically terminate upon the seventh (7th) anniversary of (i) the termination of this Agreement or (ii) the closing of any sale and purchase occurrence of the Membership Interest pursuant to the Buy-Out Interest Option or pursuant to the Buy/Sell Option (as provided in Section 21.6.4)Triggering Event.

Selection of JV Dealers; Agreements with JV Dealers. 11.3.1 Subject to the other provisions of this Section 11.3, the Company (not the Members) shall have the exclusive right to manage its JV Dealer relationships and, with Majority Consent of the Board, to appoint or terminate any JV Dealer selling or servicing JV Trucks and JV Truck Replacement Parts pursuant to sales and service agreements that the Company or any of its Affiliates enters into with such JV Dealers. 11.3.2 If the Board determines by Majority Consent that the Company shall sell solely Caterpillar Truck Models in a given country, the JV Dealer in such country shall be a subsidiary an Affiliate of a Caterpillar dealer in such country; provided, that such subsidiary Affiliate submits an application to the Company. If a Caterpillar dealer declines to form a subsidiary an Affiliate to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary an Affiliate of such Caterpillar dealer, the Board may, by Majority Consent, determine to seek applications to form a subsidiary an Affiliate to serve as the JV Dealer in such country from another Caterpillar dealer. 11.3.3 If the Board determines by Majority Consent that the Company shall sell solely Navistar Truck Models in a given country, the JV Dealer in such country shall be a subsidiary an Affiliate of a Navistar dealer in such country; provided, that such dealer submits an application to the Company. If a Navistar dealer declines to form a subsidiary an Affiliate to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary an Affiliate of such Navistar dealer, the Board shall seek applications to form a subsidiary an Affiliate to serve as the JV Dealer in such country from both Navistar dealers and Caterpillar dealers. 11.3.4 If the Board determines by Majority Consent that the Company shall sell both Caterpillar Truck Models and Navistar Truck Models in a given country: 11.3.4.1 A current Navistar dealer in such country, if any, shall be given a first right of refusal to form a subsidiary an Affiliate to serve as the JV Dealer in such country with respect to Navistar Truck Models; provided, that such dealer submits an application to the Company. If such Navistar dealer declines to form a subsidiary an Affiliate to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary an Affiliate of such Navistar dealer as the JV Dealer with respect to Navistar Truck Models in such country, a Caterpillar dealer in such country, as selected by the Board by Majority Consent, shall be given an opportunity to submit an application to the Company, as a preferred dealer, to form a subsidiary an Affiliate to serve as the JV Dealer with respect to Navistar Truck Models in such country. Notwithstanding the foregoing, in the event the Caterpillar dealer selected by the Board as a preferred dealer declines to form a subsidiary an Affiliate to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary an Affiliate of such Caterpillar dealer as the JV Dealer with respect to Navistar Truck Models in such country, the Board shall seek applications to form a subsidiary an Affiliate to serve as the JV Dealer with respect to Navistar Truck Models in such country from both Navistar dealers and Caterpillar dealers. 11.3.4.2 A current Caterpillar dealer in such country, if any, shall be given a first right of refusal to form a subsidiary an Affiliate to serve as the JV Dealer in such country with respect to Caterpillar Truck Models; provided, that such dealer submits an application to the Company. If such Caterpillar dealer declines to form a subsidiary an Affiliate to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary an Affiliate of such Caterpillar dealer as the JV Dealer with respect to Caterpillar Truck Models in such country, the Company shall seek applications to form a subsidiary an Affiliate to serve as the JV Dealer with respect to Caterpillar Truck Models in such country from another Caterpillar dealer (either in another territory of such country or in another country). 11.3.5 If the Board determines by Majority Consent that the Company shall sell both Caterpillar Truck Models and Navistar Truck Models in a given country in which there are no existing Navistar dealers at such time, no Caterpillar dealer (or any subsidiary or Affiliate thereof) shall be permitted to sell Caterpillar Truck Models unless such Caterpillar dealer also forms a subsidiaryan Affiliate, which subsidiary Affiliate agrees to serve as the JV Dealer in such country for Navistar Truck Models pursuant to the Company’s standard sales and service agreement. If such Caterpillar dealer declines to form a subsidiary an Affiliate to serve as the JV Dealer in such country for Navistar Truck Models, the Company shall seek applications from a Caterpillar dealer in another country to form a subsidiary an Affiliate to serve as such JV Dealer with respect to both Caterpillar Truck Models and Navistar Truck Models in such country. 11.3.6 Subject to applicable law, (a) the Company shall not select as a JV Dealer any Person in a given territory (other than an existing Navistar or Caterpillar dealer, as applicable, located in such territory) that serves as, or whose Affiliate serves as, a dealer of any third-party original equipment manufacturer (other than the Company) (a “Competitive OEM”) whose products and services are in competition with the products and services of the Company in such territory (such dealer, a “Competitive OEM Dealer”) without the Majority Consent of the Board, (b) in each instance where a Person selected by the Board as a JV Dealer, at the time of such selection, is not, and none of such Person’s Affiliates is, a Competitive OEM Dealer, the Board shall endeavor to include in the Company’s sales and service agreement with such Person a prohibition on such Person and its Affiliates from ever forming or acquiring a Competitive OEM Dealer, and (c) if the Board does, in fact, upon Majority Consent or pursuant to Sections 11.3.2, 11.3.3, 11.3.4, or 11.3.5, select as a JV Dealer a Person that serves as, or whose Affiliate serves as, a Competitive OEM Dealer, the Board shall endeavor to include in the Company’s sales and service agreement with such Person provisions that provide that such Person and its Affiliates sell the products of the Company (on the one hand) and the products of the Competitive OEM (on the other hand) in different locations and through different legal entities. 11.3.7 To the extent requested by the Company, each of Caterpillar and Navistar shall use its commercially reasonable efforts to encourage those of its existing dealers that demonstrate compliance with certain standards set by the Company to establish (a) a subsidiary an Affiliate to serve as a JV Dealer and (b) cause such JV Dealer to enter into sales and service agreements with the Company or one of its Affiliates to distribute JV Trucks and JV Truck Replacement Parts. In any instance in which the Company appoints a single dealer to be a JV Dealer with respect to both Caterpillar Truck Models and Navistar Truck Models, the Company shall enter into separate sales and service agreements with such JV Dealer for the sale and service of Caterpillar Truck Models (on the one hand) and Navistar Truck Models (on the other hand). 11.3.8 The Company shall use its reasonable best efforts to enter into with each JV Dealer that sells Navistar Truck Models sales and service agreements in the forms heretofore agreed to by the Members (it being understood that each such agreement will permit sales and servicing of either (i) Medium Duty COX Xrucks CXX Trucks or (ii) conventional (non-cab over engine) Medium Duty Trucks and all Heavy Duty Trucks, but not both). The Company will use its reasonable best efforts to enter into with each JV Dealer that sells Caterpillar Truck Models sales and service agreements in the forms heretofore agreed to by the Members (it being understood that each such agreement will permit sales and servicing of either (i) Medium Duty COX Xrucks CXX Trucks or (ii) conventional (non-cab over engine) Medium Duty Trucks and all Heavy Duty Trucks, but not both). Without limiting the generality of the preceding sentence, each JV Dealer sales and service agreement shall contain provisions stipulating that (a) such agreement may be assigned by the Company to the Member whose branded JV Truck models are sold pursuant to such agreement without the consent of the JV Dealer, (b) such agreement may be terminated unilaterally by the Company with or without cause to the extent permitted, and pursuant to the process required, if any, under applicable law, (c) such JV Dealer shall be prohibited from selling (i) JV Trucks or JV Truck Replacement Parts to any military customer (without Navistar’s prior written consent) and (ii) JV Trucks or JV Truck Replacement Parts in contravention of the exclusivity and non-competition provisions of this Agreement, and (d) subject to applicable law, with respect to each such agreement with a Navistar-branded JV Dealer owned by Affiliated with a Caterpillar dealer, such agreement will automatically terminate upon the seventh (7th) anniversary of (i) the termination of this Agreement or (ii) the closing of any sale and purchase occurrence of the Membership Interest pursuant to the Buy-Out Interest Option or pursuant to the Buy/Sell Option (as provided in Section 21.6.4)Triggering Event.

Selection of JV Dealers; Agreements with JV Dealers. 11.3.1 Subject to the other provisions of this Section 11.3, the Company (not the Members) shall have the exclusive right to manage its JV Dealer relationships and, with Majority Consent of the Board, to appoint or terminate any JV Dealer selling or servicing JV Trucks and JV Truck Replacement Parts pursuant to sales and service agreements that the Company enters into with such JV Dealers. 11.3.2 If the Board determines by Majority Consent that the Company shall sell solely Caterpillar Truck Models in a given country, the JV Dealer in such country shall be a subsidiary of a Caterpillar dealer in such country; provided, that such subsidiary submits an application to the Company. If a Caterpillar dealer declines to form a subsidiary to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary of such Caterpillar dealer, the Board may, by Majority Consent, determine to seek applications to form a subsidiary to serve as the JV Dealer in such country from another Caterpillar dealer. 11.3.3 If the Board determines by Majority Consent that the Company shall sell solely Navistar Truck Models in a given country, the JV Dealer in such country shall be a subsidiary of a Navistar dealer in such country; provided, that such dealer submits an application to the Company. If a Navistar dealer declines to form a subsidiary to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary of such Navistar dealer, the Board shall seek applications to form a subsidiary to serve as the JV Dealer in such country from both Navistar dealers and Caterpillar dealers. 11.3.4 If the Board determines by Majority Consent that the Company shall sell both Caterpillar Truck Models and Navistar Truck Models in a given country: 11.3.4.1 A current Navistar dealer in such country, if any, shall be given a first right of refusal to form a subsidiary to serve as the JV Dealer in such country with respect to Navistar Truck Models; provided, that such dealer submits an application to the Company. If such Navistar dealer declines to form a subsidiary to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary of such Navistar dealer as the JV Dealer with respect to Navistar Truck Models in such country, a Caterpillar dealer in such country, as selected by the Board by Majority Consent, shall be given an opportunity to submit an application to the Company, as a preferred dealer, to form a subsidiary to serve as the JV Dealer with respect to Navistar Truck Models in such country. Notwithstanding the foregoing, in the event the Caterpillar dealer selected by the Board as a preferred dealer declines to form a subsidiary to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary of such Caterpillar dealer as the JV Dealer with respect to Navistar Truck Models in such country, the Board shall seek applications to form a subsidiary to serve as the JV Dealer with respect to Navistar Truck Models in such country from both Navistar dealers and Caterpillar dealers. 11.3.4.2 A current Caterpillar dealer in such country, if any, shall be given a first right of refusal to form a subsidiary to serve as the JV Dealer in such country with respect to Caterpillar Truck Models; provided, that such dealer submits an application to the Company. If such Caterpillar dealer declines to form a subsidiary to sell JV Trucks or the Board determines by Majority Consent not to enter into a sales and service agreement with a subsidiary of such Caterpillar dealer as the JV Dealer with respect to Caterpillar Truck Models in such country, the Company shall seek applications to form a subsidiary to serve as the JV Dealer with respect to Caterpillar Truck Models in such country from another Caterpillar dealer (either in another territory of such country or in another country). 11.3.5 If the Board determines by Majority Consent that the Company shall sell both Caterpillar Truck Models and Navistar Truck Models in a given country in which there are no existing Navistar dealers at such time, no Caterpillar dealer (or any subsidiary or Affiliate thereof) shall be permitted to sell Caterpillar Truck Models unless such Caterpillar dealer also forms a subsidiary, which subsidiary agrees to serve as the JV Dealer in such country for Navistar Truck Models pursuant to the Company’s standard sales and service agreement. If such Caterpillar dealer declines to form a subsidiary to serve as the JV Dealer in such country for Navistar Truck Models, the Company shall seek applications from a Caterpillar dealer in another country to form a subsidiary to serve as such JV Dealer with respect to both Caterpillar Truck Models and Navistar Truck Models in such country. 11.3.6 Subject to applicable law, (a) the Company shall not select as a JV Dealer any Person in a given territory (other than an existing Navistar or Caterpillar dealer, as applicable, located in such territory) that serves as, or whose Affiliate serves as, a dealer of any third-party original equipment manufacturer (other than the Company) (a “Competitive OEM”) whose products and services are in competition with the products and services of the Company in such territory (such dealer, a “Competitive OEM Dealer”) without the Majority Consent of the Board, (b) in each instance where a Person selected by the Board as a JV Dealer, at the time of such selection, is not, and none of such Person’s Affiliates is, a Competitive OEM Dealer, the Board shall endeavor to include in the Company’s sales and service agreement with such Person a prohibition on such Person and its Affiliates from ever forming or acquiring a Competitive OEM Dealer, and (c) if the Board does, in fact, upon Majority Consent or pursuant to Sections 11.3.2, 11.3.3, 11.3.4, or 11.3.5, select as a JV Dealer a Person that serves as, or whose Affiliate serves as, a Competitive OEM Dealer, the Board shall endeavor to include in the Company’s sales and service agreement with such Person provisions that provide that such Person and its Affiliates sell the products of the Company (on the one hand) and the products of the Competitive OEM (on the other hand) in different locations and through different legal entities. 11.3.7 To the extent requested by the Company, each of Caterpillar and Navistar shall use its commercially reasonable efforts to encourage those of its existing dealers that demonstrate compliance with certain standards set by the Company to establish (a) a subsidiary to serve as a JV Dealer and (b) cause such JV Dealer to enter into sales and service agreements with the Company to distribute JV Trucks and JV Truck Replacement Parts. In any instance in which the Company appoints a single dealer to be a JV Dealer with respect to both Caterpillar Truck Models and Navistar Truck Models, the Company shall enter into separate sales and service agreements with such JV Dealer for the sale and service of Caterpillar Truck Models (on the one hand) and Navistar Truck Models (on the other hand). 11.3.8 The Company shall use its reasonable best efforts to enter into with each JV Dealer that sells Navistar Truck Models sales and service agreements in the forms agreed to by the Members (it being understood that each such agreement will permit sales and servicing of either (i) Medium Duty COX Xrucks XXX Trucks or (ii) conventional (non-cab over engine) Medium Duty Trucks and all Heavy Duty Trucks, but not both). The Company will use its reasonable best efforts to enter into with each JV Dealer that sells Caterpillar Truck Models sales and service agreements in the forms agreed to by the Members (it being understood that each such agreement will permit sales and servicing of either (i) Medium Duty COX Xrucks XXX Trucks or (ii) conventional (non-cab over engine) Medium Duty Trucks and all Heavy Duty Trucks, but not both). Without limiting the generality of the preceding sentence, each JV Dealer sales and service agreement shall contain provisions stipulating that (a) such agreement may be assigned by the Company to the Member whose branded JV Truck models are sold pursuant to such agreement without the consent of the JV Dealer, (b) such agreement may be terminated unilaterally by the Company with or without cause to the extent permitted, and pursuant to the process required, if any, under applicable law, (c) such JV Dealer shall be prohibited from selling (i) JV Trucks or JV Truck Replacement Parts to any military customer (without Navistar’s prior written consent) and (ii) JV Trucks or JV Truck Replacement Parts in contravention of the exclusivity and non-competition provisions of this Agreement, and (d) subject to applicable law, with respect to each such agreement with a Navistar-branded JV Dealer owned by a Caterpillar dealer, such agreement will automatically terminate upon the seventh (7th) anniversary of (i) the termination of this Agreement or (ii) the closing of any sale and purchase of the Membership Interest pursuant to the Buy-Out Interest Option or pursuant to the Buy/Sell Option (as provided in Section 21.6.4).