MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

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EXHIBIT D Form of Consignment Agreement This Consignment Agreement (this “Agreement”) is entered into as of ________, 2012 (the “Effective Date”), by and between Caterpillar Global Mining LLC, a Delaware limited liability company, on behalf of itself and its Affiliates who own Consigned Products (as defined below) (“Seller”), and Finning International Inc., a corporation organized under the federal laws of Canada (“Buyer”). Seller and Buyer are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties”. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Purchase Agreement (as defined below). W I T N E S S E T H : WHEREAS, Seller and Buyer have entered into that certain Master Asset Purchase Agreement dated as of __________, 2012 (the “Purchase Agreement”), pursuant to which the Buyer Parties will purchase from the Seller Parties certain assets relating to the Local Distribution Businesses, as described in the Purchase Agreement; and WHEREAS, in connection therewith, Buyer is willing to provide the services with respect to certain Consigned Products, which will be owned by Seller, in accordance with the terms and subject to the conditions set forth herein. NOW, THEREFORE, the Parties, intending to become legally bound, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree as follows. 15.01 Consigned Products. ARTICLE XV CONSIGNED PRODUCTS (a) The “Consigned Products” shall consist of those portions of the Excluded Inventory described in Schedule 1 hereto. (b) The Consigned Products shall be located at the applicable Buyer facility set forth in Schedule 1 hereto at all times during the Term (as defined below) and shall not be moved to another location without Seller’s prior written consent (e.g., in connection with the sale of a Consigned Product). (c) The Consigned Products shall at all times be administratively segregated from other goods either of the same or different character belonging to Buyer or any third party. All Consigned Products shall be clearly labeled by Buyer as the property of Seller. D-2 Exhibit D Form of Consignment Agreement
15.02 Consignment and Sale. (a) Consignment. The Consigned Products shall be held for sale by Buyer on consignment. (b) Sale. Upon Seller’s receipt from Buyer of the full purchase price for a Consigned Product (based upon Seller’s then-current “dealer net” prices) (“Dealer Net Prices”), title to such Consigned Product will pass directly from Seller to Buyer. Except as expressly provided in this Section 1.02(b), title to the Consigned Products shall remain with Seller at all times. (c) Sale at Seller’s Direction. Seller shall have the right to require Buyer to sell Consigned Products to a Person that is outside the Territories and designated by Seller (each, a “Seller Customer”). Upon receipt of a notice from Seller to this effect, and notwithstanding anything contained in Section 1.04, Buyer shall promptly sell to the designated Seller Customer the designated Consigned Products in accordance with the terms of this Agreement. (d) Storage. At all times during consignment or the Consigned Products are under Buyer’s custody or control, Buyer shall use commercially reasonable efforts to keep the Consigned Products in the same condition as such Consigned Products were in on the Effective Date and maintain such Consigned Products in the same manner as such Consigned Products were maintained prior to the Effective Date. (e) Withdrawals from Inventory. A Consigned Product shall be withdrawn by Buyer from inventory only in the event of (i) the sale of a Consigned Product to a customer of Buyer or a customer of Seller or (ii) the withdrawal of a Consigned Product by Seller as provided in Section 1.04. When withdrawing a Consigned Product from inventory, Buyer shall at all times withdraw the Consigned Product that has been stocked for the longest period in order to avoid deterioration and obsolescence. (f) Purchase Order. Buyer shall promptly originate a purchase order (or equivalent Buyer document acceptable to Seller) for withdrawals from inventory and shall forward it to the Seller order processing office designated by Seller. Buyer’s purchase order documents shall identify the sale as a “Consignment Withdrawal” to distinguish it from other parts purchases. (g) Additional Terms and Conditions. Seller’s standard terms and conditions of sale then in effect as of the date of a sale of a Consigned Product shall apply to the sale of such Consigned Product, except to the extent that a provision of such form directly conflicts with a provision of this Agreement, in which case the corresponding provision of this Agreement shall control. 15.03 Records. Buyer shall maintain up-to-date inventory records for the Consigned Products. Seller reserves the right from time to time to have its authorized representatives (a) inspect such records and the Consigned Products and (b) inspect the facilities in which the Consigned Products are stored. Buyer shall provide Seller and its applicable representatives all necessary access and assistance in carrying out such inspections. D-3 Exhibit D Form of Consignment Agreement
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MASTER ASSET PURCHASE AGREEMENT BY
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TABLE OF CONTENTS (continued) - ii
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TABLE OF CONTENTS (continued) - iv
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MASTER ASSET PURCHASE AGREEMENT THI
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deliver to Seller a written stateme
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into account in connection with the
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or the Canada Purchase Agreement or
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Parties may otherwise agree (the
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event beyond the Initial Closing Ou
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(iii) except as set forth in Sectio
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(iv) any Assumed Contract granting
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(v) all material policies and pract
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3.14 Compliance with Laws. Except a
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(b) Except for the Mandatory Antitr
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5.2 Transfer Taxes. Except as provi
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delayed, (1) sell, lease, subject t
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other and, upon request, to any Gov
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(b) From the date of this Agreement
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that (i) Seller and the Seller Part
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Disclosure Schedules specifying suc
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Initial Closing and (y) with a doub
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efurbishment, restoration or repair
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7.1 Representations; Warranties; Co
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(d) any Excluded Assets; (e) any ob
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to (x) $46,500,000 minus (y) the ag
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event or circumstance that gave ris
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9.7 Survival of Representations and
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10.3 Entire Agreement; Amendment; W
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10.10 Bulk Sales Law. Buyer acknowl
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(viii) the Transferred Licenses. Fo
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“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
Page 91 and 92: Information. Seller shall cooperate
Page 93 and 94: 3.05 Return of Books and Records. S
Page 95 and 96: “Confidential Information” shal
Page 97 and 98: 7.03 Succession and Assignment. Exc
Page 99 and 100: 7.09 Severability. In the event tha
Page 101 and 102: Schedule A General Services C1-15 E
Page 103 and 104: EXHIBIT C-2 Form of Initial Closing
Page 105 and 106: immediately prior to the Effective
Page 107 and 108: (c) Buyer acknowledges that it will
Page 109 and 110: appointment of a trustee or receive
Page 111 and 112: 11.04 Duty to Mitigate. Each Party
Page 113 and 114: ARTICLE XIII INTELLECTUAL PROPERTY
Page 115 and 116: (b) If to Buyer: Finning Internatio
Page 117 and 118: Date. IN WITNESS WHEREOF, the Parti
Page 119 and 120: Schedule B Information Systems Serv
Page 121 and 122: CONTRATO DE DEPOSITO POR CUENTA AJE
Page 123 and 124: El cliente podrá exigir la devoluc
Page 125 and 126: EXHIBIT C-4 Form of Initial Closing
Page 127 and 128: 3. Bucyrus Chile declara que cumple
Page 129 and 130: dependencias de Finning Chile ubica
Page 131 and 132: a) Listado de los trabajadores de l
Page 133 and 134: que deberá ser pagada conforme a l
Page 135 and 136: De igual manera, , Bucyrus Chile se
Page 137 and 138: mediando tal aprobación, Bucyrus C
Page 139 and 140: Nombre: Dirección: Cargo: Correo e
Page 141: EXHIBIT D Form of Consignment Agree
Page 145 and 146: 16.04 Taxes and Fees. Except as pro
Page 147 and 148: with Buyer to the extent such loss
Page 149 and 150: If to Seller: Attn: Gail Sexsmith F
Page 151 and 152: Date. IN WITNESS WHEREOF, the Parti
Page 153 and 154: EXHIBIT E Accounting Principles (Se
Page 155 and 156: vii. Seller will request mine site
Page 157 and 158: the parts consumed, the work-in-pro
Page 159 and 160: Work Order Created From SAP BAAN Pr
Page 161 and 162: EXHIBIT G Retained WIP and Retained
Page 163 and 164: SCHEDULES TO MASTER ASSET PURCHASE
Page 165 and 166: Schedule A Certain Bucyrus Entities
Page 167 and 168: Schedule B Products - 3 - Schedule
Page 169 and 170: I. Acquired Inventory Schedule 1.1(
Page 171 and 172: Seller/Seller Party Buyer/Buyer Par
Page 175 and 176: D. Other Seller/Seller Party Buyer/
Page 189 and 190: 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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