MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

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customer orders (other than the Retained Orders) outstanding as of the Initial Closing or the Canada Closing (as applicable in accordance with Section 2.1); (ii) subject to Sections 1.6, 6.7, 6.8, 6.9, 6.13, 6.18, 9.1(a) (with respect to Section 3.6), 9.1(e), 9.1(f) and 9.1(g), any Liability under the Assumed Contracts; (iii) subject to Section 6.8, any Liability for warranties, returns, repairs or rebates for products, parts or services sold in the Territories before the Initial Closing or the Canada Closing (as applicable in accordance with Section 2.1) by Seller or any of the Bucyrus Entities or their respective dealers under the Bucyrus Warranties (such Liability to be administered in accordance with the standard warranty administration processes of the Bucyrus Entities in effect from time to time applicable to the Local Distribution Businesses in the applicable portion of the Territories); (iv) any Liability with respect to the Transferred Employees (hereinafter defined) for which Buyer or any of the Buyer Parties is responsible pursuant to Sections 6.6(d), (e), (f) and (g) of this Agreement or the Canada Purchase Agreement; (v) any Liability for Taxes for which Buyer or any of the Buyer Parties is responsible pursuant to Article 5 of this Agreement or the Canada Purchase Agreement; and (vi) the other Liabilities of Seller and its Affiliates described on Schedule 1.3(a) and any Liabilities of Seller and its Affiliates of the same type and nature as those described on Schedule 1.3(a) incurred in the ordinary course of business between the date of this Agreement and the Initial Closing or the Canada Closing (as applicable in accordance with Section 2.1), in each case in respect of the Local Distribution Businesses. For the avoidance of doubt, the term “Assumed Liabilities” shall include the Canada Assumed Liabilities, and the categories of Assumed Liabilities set forth in the foregoing clauses (i) through (vi) shall include the respective corresponding categories of Canada Assumed Liabilities (it being understood that the Canada Assumed Liabilities will not be assumed by Buyer and/or the Buyer Parties until the Canada Closing). (b) Notwithstanding anything to the contrary contained in this Agreement, any schedule or exhibit hereto or any certificate, instrument or other document delivered by either Party pursuant hereto, the Parties acknowledge that neither Buyer nor any of the Buyer Parties shall assume or be obligated to pay, perform or otherwise discharge any Liability of Seller or any of the Seller Parties that relates to the Local Distribution Businesses but is not expressly assumed in Section 1.3(a) herein, including any such Liability (of any kind, character or description whatsoever, whether direct or indirect, known or unknown, absolute or contingent, matured or unmatured, and currently existing or hereinafter arising) to the extent relating to (i) the Excluded Assets, (ii) any Taxes attributable to the Initial Closing Pre-Closing Tax Period or arising as a consequence of the disposition of Acquired Assets by the Seller Parties, including any successor or derivative liability for such Taxes (including pursuant to article 71 of the Chilean Tax Code of Decree Law No. 830) or, in the case of such Taxes to the extent relating to the Canada Business, the Canada Pre-Closing Tax Period or arising as a consequence of the disposition of Acquired Assets by the Seller Parties, or any prior tax periods, in each case, except as provided in Article 5 - 6 -
or the Canada Purchase Agreement or (iii) any claim, litigation or proceeding unrelated to the Assumed Liabilities, including any Scheduled Matter (collectively, the “Retained Liabilities”). Seller shall, and shall cause the applicable Seller Parties to, retain and fully pay, perform and discharge the Retained Liabilities when due without recourse to Buyer or the Buyer Parties. 1.4 Allocation of Purchase Price. A preliminary allocation of the Purchase Price among the Acquired Assets is set forth on Schedule 1.4. Within forty-five (45) days after the Initial Closing Date, Seller shall deliver to Buyer a schedule allocating the Initial Closing Purchase Price for the Initial Closing Acquired Assets among the Initial Closing Acquired Assets (such schedule, the “Allocation Schedule”). If within thirty (30) days after the receipt of the Allocation Schedule, Buyer notifies Seller in writing that Buyer objects to one or more items reflected on the Allocation Schedule, Buyer and Seller shall negotiate in good faith to resolve such dispute. If Buyer and Seller fail to resolve any such dispute within thirty (30) days after Seller’s receipt of Buyer’s notice, the parties shall submit the dispute for resolution to the Accounting Firm for resolution, which resolution shall be set forth in writing and shall be final and binding upon all Parties. The fees and expenses of the Accounting Firm shall be paid fifty percent (50%) by Seller and fifty percent (50%) by Buyer. Seller and Buyer and their Affiliates shall report, act, and file Tax Returns in all respects and for all purposes consistent with the Allocation Schedule. Neither Seller nor Buyer shall take any position (whether in audits, Tax Returns, or otherwise) that is inconsistent with the Allocation Schedule unless required to do so by applicable Legal Requirements. The Canada Purchase Price shall be allocated among the Canada Acquired Assets in accordance with the Canada Purchase Agreement. 1.5 Procedure for Assignment of Certain Assets. Notwithstanding anything in this Agreement or the Canada Purchase Agreement to the contrary, neither this Agreement nor the Canada Purchase Agreement shall constitute an agreement to assign or transfer any Acquired Asset (including any Assumed Contract to be assigned pursuant to Section 1.1 of this Agreement or the Canada Purchase Agreement) or any claim, right, benefit or obligation thereunder or resulting therefrom if (a) an assignment or transfer thereof, without the Consent of a third-party thereto, would constitute a breach or violation thereof or impose a Liability on Seller, the Seller Parties, Buyer or the Buyer Parties and (b) such Consent is not obtained at or prior to the Initial Closing or the Canada Closing (as applicable in accordance with Section 2.1) (each, an “Unassigned Asset”). With respect to each Unassigned Asset, until the earlier of (x) the expiration, pursuant to the terms thereof, of such Unassigned Asset that is an Assumed Contract and (y) the eventual assignment or transfer of such Unassigned Asset pursuant hereto or to the Canada Purchase Agreement: (a) Seller shall, and shall cause the Seller Parties to, hold such Unassigned Asset for the benefit of Buyer and the Buyer Parties, deal with such Unassigned Asset in accordance with the reasonable instructions provided by Buyer and use commercially reasonable efforts to obtain a Consent (to assignment or transfer) from the counterparty to such Unassigned Asset, and Buyer shall, and shall cause the Buyer Parties to, reasonably cooperate with Seller or the Seller Parties in doing so; and (b) Seller shall, and shall cause the Seller Parties to, use commercially reasonable efforts to provide Buyer or the Buyer Parties with the benefits and burdens of such Unassigned Asset (subject to Sections 6.7, 6.8, 6.9, 6.13, 6.18, 9.1(a) (with respect to Section - 7 -
Page 1 and 2: MASTER ASSET PURCHASE AGREEMENT BY
Page 3 and 4: TABLE OF CONTENTS (continued) - ii
Page 5 and 6: TABLE OF CONTENTS (continued) - iv
Page 7 and 8: MASTER ASSET PURCHASE AGREEMENT THI
Page 9 and 10: deliver to Seller a written stateme
Page 11: into account in connection with the
Page 15 and 16: Parties may otherwise agree (the
Page 17 and 18: event beyond the Initial Closing Ou
Page 19 and 20: (iii) except as set forth in Sectio
Page 21 and 22: (iv) any Assumed Contract granting
Page 23 and 24: (v) all material policies and pract
Page 25 and 26: 3.14 Compliance with Laws. Except a
Page 27 and 28: (b) Except for the Mandatory Antitr
Page 29 and 30: 5.2 Transfer Taxes. Except as provi
Page 31 and 32: delayed, (1) sell, lease, subject t
Page 33 and 34: other and, upon request, to any Gov
Page 35 and 36: (b) From the date of this Agreement
Page 37 and 38: that (i) Seller and the Seller Part
Page 39 and 40: Disclosure Schedules specifying suc
Page 41 and 42: Initial Closing and (y) with a doub
Page 43 and 44: efurbishment, restoration or repair
Page 45 and 46: 7.1 Representations; Warranties; Co
Page 47 and 48: (d) any Excluded Assets; (e) any ob
Page 49 and 50: to (x) $46,500,000 minus (y) the ag
Page 51 and 52: event or circumstance that gave ris
Page 53 and 54: 9.7 Survival of Representations and
Page 55 and 56: 10.3 Entire Agreement; Amendment; W
Page 57 and 58: 10.10 Bulk Sales Law. Buyer acknowl
Page 59 and 60: (viii) the Transferred Licenses. Fo
Page 61 and 62: “Assumed Liabilities” shall hav
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“Canada Business” shall mean th
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Closing Date (with respect to the C
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“Initial Closing Business” shal
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“Lien” shall mean any charge, c
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detract from, materially diminish t
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“Transferred Employees” shall m
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EXHIBIT A-1 Canada Territories 1. A
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EXHIBIT B Form of Initial Closing T
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IN WITNESS WHEREOF, the parties her
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APPENDIX A 3 [APPENDIX TO BE COMPLE
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(other than the Initial Closing Ass
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FINNING INTERNATIONAL INC. By: ____
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EXHIBIT C-1 Form of Initial Closing
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immediately prior to the Effective
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Information. Seller shall cooperate
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3.05 Return of Books and Records. S
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“Confidential Information” shal
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7.03 Succession and Assignment. Exc
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7.09 Severability. In the event tha
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Schedule A General Services C1-15 E
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immediately prior to the Effective
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(c) Buyer acknowledges that it will
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appointment of a trustee or receive
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11.04 Duty to Mitigate. Each Party
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ARTICLE XIII INTELLECTUAL PROPERTY
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(b) If to Buyer: Finning Internatio
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Date. IN WITNESS WHEREOF, the Parti
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Schedule B Information Systems Serv
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CONTRATO DE DEPOSITO POR CUENTA AJE
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El cliente podrá exigir la devoluc
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3. Bucyrus Chile declara que cumple
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dependencias de Finning Chile ubica
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a) Listado de los trabajadores de l
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que deberá ser pagada conforme a l
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De igual manera, , Bucyrus Chile se
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mediando tal aprobación, Bucyrus C
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Nombre: Dirección: Cargo: Correo e
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EXHIBIT D Form of Consignment Agree
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15.02 Consignment and Sale. (a) Con
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16.04 Taxes and Fees. Except as pro
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with Buyer to the extent such loss
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If to Seller: Attn: Gail Sexsmith F
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Date. IN WITNESS WHEREOF, the Parti
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EXHIBIT E Accounting Principles (Se
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vii. Seller will request mine site
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the parts consumed, the work-in-pro
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Work Order Created From SAP BAAN Pr
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EXHIBIT G Retained WIP and Retained
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SCHEDULES TO MASTER ASSET PURCHASE
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Schedule A Certain Bucyrus Entities
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Schedule B Products - 3 - Schedule
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I. Acquired Inventory Schedule 1.1(
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Seller/Seller Party Buyer/Buyer Par
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D. Other Seller/Seller Party Buyer/
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Initial Closing Territories Seller/
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Pl. Part Description TEREX DISTRIBU
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Pl. Part Description - 31 - Current
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I. Excluded Inventory Schedule 1.1(
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- 67 - Schedule 1.1(b) Excluded Ass
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I. Assumed Other Current Liabilitie
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Schedule 1.4 Preliminary Allocation
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Schedule 6.6(a) Employees [Redacted
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2. [Redacted reference to confident
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I. Standard Bucyrus Warranties See
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[Redacted confidential details rega
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- 81 - Schedule 6.8 Warranty Matter
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- 103 - Schedule 6.8 Warranty Matte
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1. 2. Customer Name Mine / Site Bas
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INTRODUCTION This Disclosure Schedu
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Schedule 3.3(a)(iii) No Conflicts 1
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16. Consigned Stock Agreement, date
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49. Lease, dated July 29, 2010, bet
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83. Contrato de Usuario de Zona Fra
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Antofagasta Region, authorizing Buc
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I. Section 3.6(a)(i) Schedule 3.6(a
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Blanca, S.A. 31. [Redacted referenc
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63. Corporacion Nacional del Cobre
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17. Corporacion Nacional Del Cobre
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I. Section 3.6(b)(i) Schedule 3.6(b
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10. Award Letter regarding Contract
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12. Highvale Mine Warehouse, 4425 S
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Canada Territories 1. None Initial
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[Redacted certain confidential tax
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Schedule 3.13 Title to Assets 1. Ba
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