Exhibit 10.6
OMNIBUS AGREEMENT
OMNIBUS AGREEMENT (this "Agreement"), dated as of June 16,
1999, by and among MCII Holdings (USA), Inc., a Delaware corporation
("Holdings"), Consorcio G Grupo Xxxx, S.A. de C.V., a corporation organized
under the laws of the United Mexican States ("Xxxx"), Xxxxxx Xxxxxxxxxx & Xxxx
Fund III, L.P. ("JLL"), CIBC WG Argosy Merchant Fund 2, LLC ("CIBC Argosy") and
Co-Investment Merchant Fund 3, LLC ("CMF" and, together with JLL and CIBC
Argosy, the "Investors").
RECITALS
WHEREAS, pursuant to the Investment Agreement (the "Investment
Agreement"), dated as of June 11, 1999, by and among JLL, CIBC Argosy XX
Xxxxxxxx Fund 2, L.L.C. ("CIBC Argosy"), Co-Investment Merchant Fund 3, LLC
("CMF" and, together with JLL and CIBC Argosy, the "Investors") and Xxxx, the
Investors acquired, among other things, certain securities of Holdings, and
simultaneously therewith, Holdings repurchased from Xxxx certain securities of
Holdings owned by Xxxx; and
WHEREAS, as a condition to the consummation of the Investment
Agreement, the Investors have required that Xxxx and Holdings enter into an
agreement with respect to (i) the Latin American Rights (as hereinafter
defined), (ii) the Xxxx Distribution Rights (as hereinafter defined), (iii) St.
Xxxxxxxx Equipment Disposition Rights (as hereinafter defined) and the MME Offer
(as hereinafter defined); and
WHEREAS, capitalized terms used herein and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Investment Agreement; and
WHEREAS, the parties desire to enter into such agreements, on
the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
ARTICLE I
ST. XXXXXXXX EQUIPMENT DISPOSITION
Section 1.1 Holdings shall, and shall cause Motor Coach
Industries Limited ("MCIL"), a wholly owned subsidiary of Holdings to sell to
Xxxx or one of its affiliates, all of the equipment set forth in Schedule I
hereto (the "Equipment") located at MCIL's manufacturing facility at 0000 Xx.
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, Xxxxxx (the "St. Xxxxxxxx Facility") on an
"AS IS WHERE IS" basis for aggregate consideration of $1.00 (the "St. Xxxxxxxx
Equipment Disposition").
Section 1.2 It is the intention of Holdings to discontinue
its parts operations at the St. Xxxxxxxx Facility as promptly as possible and
to transfer the production of such parts and the Equipment to MME (as
hereinafter defined). The consummation of the St. Xxxxxxxx Equipment
Disposition shall occur at the Closing; PROVIDED, HOWEVER, that following
such sale, Xxxx shall lease the Equipment to MCIL for a term of up to 3 years
for an annual rental of $1.00. Notwithstanding the foregoing, the parties
agree to use their reasonable efforts to cause the Equipment to be delivered
to Xxxx as promptly as practicable following the Closing; PROVIDED, FURTHER,
that such transfer shall not occur until Holdings' determination, in its
reasonable judgment, that the manufacturing facilities of Mexicana de
Manufacturas Especiales, S.A. de C.V. ("MME") and the products manufactured
at such facility comply with the quality and delivery standards established
by Holdings for such products.
ARTICLE II
LATIN AMERICAN RIGHTS
Section 1.3 In the event that Holdings determines not to
manufacture, distribute or sell its products (the "Holdings Products") or
otherwise engage in the Business in any country situated in Latin America and
that such business should be conducted by a third party, Holdings shall give
notice (of such intention to Xxxx (the "License Notice") and, to the extent
permitted by
2
applicable law, shall offer (the "License Offer") to Xxxx the right to
license (the "License") from Holdings the right to manufacture, distribute
and sell the Holdings products in such country (the "Latin American Right").
Section 1.4 The License shall be a royalty bearing license on
such commercially reasonable terms relating to the manufacture, distribution and
sale of the Holdings products as are mutually agreeable to Holdings and Xxxx and
shall be effective with respect to those countries in Latin America in which
Holdings has determined not to sell or distribute the Holdings Products.
Section 1.5 Xxxx shall have 60 business days (the "License
Response Period") within which to accept the License Offer. In the event that
(i) Xxxx notifies Holdings that it does not wish to accept the License Offer,
(ii) fails to notify Holdings within the Response Period or (iii) the parties
are unable to agree on the terms of the License, Holdings shall have the right
to offer the License to a third party on terms no less favorable to Holdings
than those offered by Xxxx.
ARTICLE III
XXXX DISTRIBUTION RIGHTS
Section 1.6 In the event that Xxxx determines to
distribute or sell any of its body-on-chassis bus products (the "Xxxx
Products") through an unaffiliated third party in the United States and/or
Canada, Xxxx shall give notice in writing (the "Distribution Notice") to
Holdings of such intention and shall provide to Holdings a right of first
refusal with respect to the right to distribute the Xxxx Products in the
United States and/or Canada (the "Xxxx Distribution Rights").
Section 1.7 The Distribution Rights shall be on such terms
and conditions as are mutually agreeable to Xxxx and Holdings, but in no
event less favorable to
3
Holdings than any other distribution rights granted by Xxxx with respect to
its products.
Section 1.8 Holdings shall have 60 business days within which
to exercise its right to distribute the Xxxx Products (the "Acceptance Period").
In the event that (i) Holdings notifies Xxxx that it does not wish to exercise
such right, (ii) fails to give notice within the Acceptance Period or (iii) the
parties are unable to agree on the terms of the Distribution Rights, Xxxx may
offer the Distribution Rights to a third party on terms no less favorable to
Xxxx than those offered to Holdings.
Section 1.9 Notwithstanding the foregoing, the parties
acknowledge and agree that this section shall be inapplicable, and Holdings
shall have no rights, in the event that Xxxx determines to distribute or sell
the Xxxx Products directly, without the use of a third party.
ARTICLE IV
MME INVESTMENT
Section 1.10 Promptly after the Closing, Xxxx shall offer
the Investors the right to purchase collectively twenty (20%) percent of MME
on a pro-rata basis in accordance with their respective ownership of Holdings
for a price and on other terms to be mutually agreed upon ("Initial MME
Offer"). Upon receipt of such offer, each Investor shall have 180 days to
accept such offer. An Investor's failure to accept such offer shall be deemed
to be a rejection of such offer and the other Investors shall have the right
to acquire such Investor's proportionate share on a pro-rata basis.
Section 1.11 In the event that Holdings or its affiliates
acquire Bluebird Corporation (the "Acquisition"), Xxxx shall offer the Investors
the right to acquire collectively an additional thirty (30%) percent of MME on a
pro-rata basis in accordance with their respective ownership of Holdings for a
price and on other terms to be mutually agreed upon ("Additional MME
4
Offer" and, together with the Initial MME Offer, the "MME Offer"). In the
event that the Acquisition occurs prior to the Initial MME Offer, the
Investors shall have the right to acquire an aggregate of fifty (50%) percent
of MME and Xxxx shall not be required to make the Initial MME Offer. Such
offer shall be made to the Investors by Xxxx within twenty business days
following the consummation of the acquisition of Bluebird and each Investor
shall have twenty business days to accept such offer. An Investor's failure
to accept such offer shall be deemed to be a rejection of such offer and the
other Investors shall have the right to acquire such Investor's proportionate
share on a pro-rata basis.
Section 1.12 Xxxx and the Investors agree to use their
reasonable best efforts to agree on the price and terms on which any interest
in MME is to be acquired.
ARTICLE V
INSURANCE
Section 1.13 Holdings agrees to use commercially reasonable
efforts to assist Xxxx in obtaining favorable rates for directors and officers
liability insurance.
ARTICLE VI
MISCELLANEOUS
Section 1.14 FURTHER ASSURANCES. From time to time after
the date hereof, at the request of a party hereto and at the expense of the
party so requesting, the other party hereto shall execute and deliver to such
requesting party such documents and take such other action as such requesting
party may reasonably request in order to consummate the transactions
contemplated hereby.
Section 1.15 NOTICES. Unless otherwise provided in this
Agreement, all notices and other communications required or permitted to be
given hereunder
5
shall be in writing and shall be (a) delivered by hand, (b) delivered by a
nationally recognized, commercial overnight delivery service, (c) mailed
postage prepaid by certified mail, return receipt requested, or (d)
transmitted by facsimile:
If to Xxxx, to: Consorcio G Grupo
Xxxx, S.A. de C.V.
Tlacoquemecatl Xx. 00
Xxxxxxx Xxx Xxxxx
00000, Xxxxxx X.X., Xxxxxx
Facsimile: 000-000-000-0000
Attention: Xxxxxx Xxxxx Xxxxxx
Copies to: Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx
Facsimile: 000-000-0000
Attention: M. Xxxxxx Xxxxxx, Esq.
If to Holdings, to: MCII Holdings (USA), Inc.
x/x Xxxxx Xxxxx Xxxxxxxxxx
Xxxxxxxxxxxxx, Inc.
00 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx 00000
Facsimile: 847-299-9900
Attention: Xxx Xxxxxxx, Esq.
If to JLL, to: Xxxxxx Xxxxxxxxxx & Xxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 212-286-8626
Attention: Xx. Xxxxxxx X. Xxxxxxxx
Copies to: Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
6
If to CIBC Argosy c/o CIBC World Market Corp.
or CMF, to: 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Mr. Xxx Xxxxxx
Copies to: Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 212-269-5420
Attention: Xxxxx Xxxxxxx, Esq.
Such notices shall be deemed given: (i) in the case of hand deliveries, when
received; (ii) in the case of an overnight delivery service, on the next
business day after being placed in the possession of such delivery service, with
delivery charges prepaid; (iii) in the case of mail, five days after deposit in
the United States postal system, certified mail, return receipt requested,
postage prepaid; and (iv) in the case of facsimile notices, when electronic
confirmation of receipt is received by the sender. Any party may change its
addressee, address or facsimile number by written notice to the other party
given in accordance with this Section 6.2, PROVIDED that any such notice shall
be effective only upon receipt.
Section 1.16 ENTIRE AGREEMENT. This Agreement constitutes
the entire understanding of the parties hereto with respect to the subject
matter hereof. This Agreement supersedes all prior agreements and
understandings, oral and written, with respect to its subject matter.
Section 1.17 BINDING EFFECT; ASSIGNMENT. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns; PROVIDED, HOWEVER, that
neither this Agreement nor any of the rights, interests or obligations
hereunder may be assigned, directly or indirectly, by a party hereto without
the prior written consent of the other party, except that any party may
assign its rights to any of its respective affiliates; and, PROVIDED FURTHER,
that no such assignment shall relieve any party hereto from its obligations
under this Agreement.
Section 1.18 NO THIRD-PARTY BENEFICIARIES. Except as
specifically contemplated herein, this Agreement is not intended and shall not
be deemed to confer
7
upon or give any person or entity except the parties hereto and their
respective successors and permitted assigns any remedy, claim, liability,
reimbursement, cause of action or other right under or by reason of this
Agreement.
Section 1.19 COUNTERPARTS. This Agreement may be executed
in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 1.20 INTERPRETATION. The headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. As used in this Agreement, the term
"including" shall mean including without limitation. As used in this
Agreement, the term "person" shall mean and include an individual, a
partnership, a limited liability company, a joint venture, a corporation, a
trust, an unincorporated organization or association and a government or any
department or agency thereof. As used in this Agreement, the term "affiliate"
shall have the meaning set forth in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended.
Section 1.21 GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware, without giving effect to conflicts of law principles. The parties
hereto waive their right to a jury trial with respect to disputes hereunder;
all such disputes shall be settled by binding arbitration pursuant to the
rules of the American Arbitration Association in New York, New York and the
order of such arbitrators shall be final and binding on all parties hereto
and may be entered as a judgment in a court having jurisdiction over the
parties. Each Investor, the Company and Xxxx hereby agree and consent to the
jurisdiction of the Chancery Court of and for New Castle County, Delaware
(the "Court"). Xxxx hereby irrevocably consents to the service of any and all
process in any such suit, action or proceeding by the delivery of such
process to such party at the address and in the manner provided in Section
6.2. Xxxx has appointed The Corporation Trust Company, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, as its authorized agent (the "Xxxx Authorized
Agent") upon which process may be served in any suit, action or proceeding
based on this Agreement which may be instituted in any Court, by Holdings or
Xxxx, and Xxxx expressly accepts the juris-
8
diction of any such Court in respect of any such suit, action or
proceeding. Such appointment shall be irrevocable. Xxxx represents and
warrants that the Xxxx Authorized Agent has agreed to act as said agent for
service of process, and Xxxx agrees to take any and all action, including the
filing of any and all documents and instruments, which may be necessary to
continue such appointment in full force and effect. Service of process upon
the Xxxx Authorized Agent and written notice of such service to Xxxx shall be
deemed, in every respect, effective service of process upon Xxxx.
[SIGNATURE PAGES FOLLOW]
9
IN WITNESS WHEREOF, the parties hereto have executed this
Omnibus Agreement as of the day and year first above written.
CONSORCIO G GRUPO XXXX, S.A. DE C.V.
By:
-------------------------------------
Name:
Title:
MCII HOLDINGS (USA), INC.
By:
-------------------------------------
Name:
Title:
XXXXXX XXXXXXXXXX & XXXX FUND III, LP.
By: JLL ASSOCIATES III, L.L.C.
Its general partner
By:
-------------------------------------
Managing member
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By:
-------------------------------------
Xxx Xxxxxx, authorized signatory
CO-INVESTMENT MERCHANT FUND 3, LLC
By:
-------------------------------------
Xxx Xxxxxx, authorized signatory
