MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

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19.03 No Third-Party Beneficiaries. Nothing in this Agreement is intended or shall be construed to entitle any Person, other than the Parties and their respective successors and permitted transferees and assigns, to any claim, cause of action, remedy or right of any kind. 19.04 Entire Agreement. This Agreement constitutes the entire agreement between the Parties as to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, by or on behalf of the Parties. 19.05 Succession and Assignment. Except as otherwise expressly provided in this Agreement, no Party may assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party. Any attempted assignment or delegation without the required consent shall be null and void ab initio. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties, their legal representatives and their successors and assigns. 19.06 Headings. The headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. 19.07 Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or electronic mail will be effective as delivery of a manually executed counterpart of this Agreement. 19.08 Notices. Any notice, request, instruction or other document to be given hereunder by a Party shall be in writing and shall be deemed to have been given (i) when received if given in person or by courier or a courier service, (ii) on the date of transmission if sent by telex, facsimile, electronic mail or other wire transmission (receipt confirmed) or (iii) five (5) Business Days after being deposited in the mail, certified or registered, postage prepaid: If to Buyer: Finning International Inc. 10th Floor, 666 Burrard Street Vancouver, BC V6C 2X8 Attn: David Smith Facsimile: +1 (604) 691-6254 E-mail: david.s.smith@finning.com with copies (which shall not constitute notice) to: Finning International Inc. 10 th Floor, 666 Burrard Street Vancouver, BC V6C 2X8 D-8 Exhibit D Form of Consignment Agreement
If to Seller: Attn: Gail Sexsmith Facsimile: +1 (604) 691-6440 E-mail: Gail.Sexsmith@finning.com Caterpillar Global Mining LLC 6744 S. Howell Avenue PO Box 267 Oak Creek, Wisconsin 53154 U.S.A. Attn: Julie Lagacy Facsimile: +1 (414) 301-8423 E-mail: Lagacy_Julie_A@cat.com with copies (which shall not constitute notice) to: and Caterpillar Inc. 100 NE Adams Street Peoria, Illinois 61629 Attn: Deputy General Counsel, Commercial Section Facsimile: +1 (309) 675-1795 E-mail: Sposato_Michael_G@cat.com Mayer Brown LLP 71 S. Wacker Dr. Chicago, IL 60606 Attn: John Sagan Andrew Noreuil Facsimile: +1 (312) 701-7711 or such other address as any Party may from time to time specify by written notice to the other Party. Any Party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other Party notice in the manner herein set forth. 19.09 Applicable Law. This Agreement shall in all respects be governed by, and construed in accordance with, the laws of the State of New York without giving effect to any conflicts of law principles of such state that might refer the governance, construction or interpretation of such agreements to the laws of another jurisdiction. Each Party to this Agreement irrevocably waives the right to a trial by jury in connection with any matter arising out of this Agreement. 19.10 Amendments and Waivers. This Agreement may be altered, amended or modified in whole or in part at any time only by a writing signed by all the Parties. No waiver D-9 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
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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
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 and 142: EXHIBIT D Form of Consignment Agree
Page 143 and 144: 15.02 Consignment and Sale. (a) Con
Page 145 and 146: 16.04 Taxes and Fees. Except as pro
Page 147: with Buyer to the extent such loss
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/
Page 193 and 194: Pl. Part Description TEREX DISTRIBU
Page 195 and 196: Pl. Part Description - 31 - Current
Page 197 and 198: Pl. Part Description - 33 - Current
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Pl. Part Description - 35 - 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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