MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

with Buyer to the extent such loss or casualty resulted from the negligence, gross negligence or
intentional misconduct of Buyer or any of its Affiliates, employees, representatives or agents or
breach of this Agreement by Buyer. Upon any loss of, or casualty to, a Consigned Product for
which Buyer is liable pursuant to the immediately preceding sentence, Buyer shall be
unconditionally obligated to purchase such Consigned Product for the full value thereof (based
on Seller’s then-current Dealer Net Prices), without offset or counterclaim.
18.02 Insurance. Buyer shall maintain in full force and effect a policy of insurance with
respect to all Consigned Products against any loss or casualty to the Consigned Products for an
amount not less than the full dealer net value (based on Seller’s then-current Dealer Net Prices)
of the Consigned Products. Such insurance shall provide protection against “All Risks” of direct
physical loss or other casualty and shall be carried by a reliable insurance company, as accepted
and approved by Seller. Each such policy shall (a) name Seller as an additional insured, (b)
insure the interests of Seller as they may appear, and (c) not be canceled or materially changed
without giving Seller at least thirty (30) days’ prior written notice. Buyer shall provide suitable
evidence of all such insurance to Seller upon request.
18.03 Indemnity. Buyer shall indemnify and hold harmless Seller from and against any
and all claims, actions and suits, whether groundless or otherwise, and from and against any and
all liabilities, losses, damages and expenses of every nature and character arising out of any
breach of this Agreement by Buyer or, to the extent Buyer is liable pursuant to the first sentence
of Section 4.01, arising out of Buyer’s or any third party’s receipt, handling, operation,
maintenance, use, storage, treatment or disposal of the Consigned Products while and to the
extent the Consigned Products are under consignment with Buyer.
18.04 DISCLAIMER OF LIABILITY. TO THE EXTENT PERMITTED BY LAW,
NEITHER SELLER NOR ANY OF ITS AFFILIATES, EMPLOYEES OR AGENTS SHALL
BE LIABLE FOR PUNITIVE, EXEMPLARY, CONSEQUENTIAL, SPECIAL OR
INCIDENTAL DAMAGES (INCLUDING LOSS OF PROFIT, LOSS OF OPPORTUNITY,
LOSS OF BUSINESS REPUTATION OR OTHERWISE) ARISING FROM SELLER’S
PERFORMANCE OR NON-PERFORMANCE OF ITS OBLIGATIONS UNDER THIS
AGREEMENT OR ARISING FROM BUYER’S USE OF THE CONSIGNED PRODUCTS,
EVEN IF FORESEEABLE OR SELLER WAS INFORMED OF THE POTENTIAL FOR
SUCH DAMAGES.
ARTICLE XIX
GENERAL PROVISIONS
19.01 Relationship of the Parties. The relationship between Seller and Buyer under this
Agreement is that of consignor and consignee. Neither Party shall have the authority or power to
bind the other Party or to contract in the name of, or create a liability against, the other Party in
any way or for any purpose.
19.02 Schedules. The Schedules to this Agreement (which are hereby incorporated
herein by reference) are an integral part of this Agreement and all references to the Agreement
shall include the Schedules and any amendments or other attachments to this Agreement.
D-7
Exhibit D
Form of Consignment Agreement