MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

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written notice, an “Assumed Contract Update Notice”). No Assumed Contract Update Notice shall be deemed to constitute a Schedule Supplement, and any update to the Disclosure Schedule contained in an Assumed Contract Update Notice shall be effective to cure any breach of representation or warranty for purposes of the indemnification obligations of Seller pursuant to Section 9.1(a) and for purposes of the conditions to the Initial Closing set forth in Article 7. 6.13 Shared Contracts. (a) With respect to each of the contracts and agreements listed in Schedule 6.13(a) (collectively, the “Shared Contracts”), prior to the Initial Closing and, to the extent that a Shared Contract relates to the Canada Business, the Canada Closing, Seller and Buyer shall use their commercially reasonable efforts to work together (and, if necessary and desirable, to work with the third parties to the Shared Contracts and other dealers of Seller) in an effort to divide, modify and/or replicate (in whole or in part) as appropriate and, if practicable, novate, the respective rights and obligations under and in respect of each such Shared Contract such that, effective as of the Initial Closing (and/or, to the extent relating to the Canada Business, as of the Canada Closing), (A) Buyer or its designated Affiliate shall be the beneficiary of the rights and shall be responsible for the obligations related to that portion of such Shared Contract to the extent relating to the Local Distribution Businesses (the “Local Business Portion”) (so that, subsequent to the Initial Closing and/or the Canada Closing, as applicable, Seller and its Affiliates shall have no rights or obligations with respect to the Local Business Portion of such Shared Contract) and (B) Seller or the applicable Bucyrus Entity (and/or another dealer of Seller designated by Seller) shall continue to be the beneficiary of the rights and shall be responsible for the obligations related to such Shared Contract other than the Local Business Portion (the “Non-Local Business Portion”) (so that, subsequent to the Initial Closing and/or the Canada Closing, as applicable, Buyer and its Affiliates shall have no rights or obligations with respect to the Non-Local Business Portion of such Shared Contract). With respect to any Shared Contract that is formally divided, modified and/or replicated in accordance with the foregoing sentence prior to the Initial Closing and/or the Canada Closing (as applicable), the Local Business Portion shall be assigned at the Initial Closing or the Canada Closing (as applicable) to Buyer or another Buyer Party designated by Buyer at the Initial Closing or the Canada Closing (as applicable) and shall be deemed to be an Initial Closing Assumed Contract or a Canada Assumed Contract, as applicable. The Parties also agree that, although they hereby agree to use commercially reasonable efforts to divide, modify and/or replicate (in whole or in part) as appropriate and, if possible, novate, the respective rights and obligations under and in respect of each such Shared Contract prior to the Initial Closing and/or the Canada Closing (as applicable) and the Parties hereby agree to cooperate with each other (and, as applicable, other dealers of Seller and its Affiliates) in attempting to obtain all such arrangements, any failure to obtain any such arrangements by any of them for any reason in and of itself whatsoever shall not constitute a breach of this Agreement or the Canada Purchase Agreement. (b) If the Parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Initial Closing and/or the Canada Closing (as applicable) as contemplated by Section 6.13(a), then: (i) the Shared Contracts marked on Schedule 6.13(a) with (x) an asterisk (such Shared Contracts, the “Initial Closing Shared Contracts”) shall be assigned at the - 34 -
Initial Closing and (y) with a double asterisk (such Shared Contracts, the “Canada Shared Contracts”) shall be assigned at the Canada Closing, in each case of the foregoing clauses (x) and (y) to Buyer or another Buyer Party designated by Buyer and shall constitute Initial Closing Assumed Contracts or Canada Assumed Contracts (as applicable); provided, that to the extent reasonably within the contractual or other ability or control of Buyer, (A) Buyer or such Buyer Party shall cooperate with Seller (and, at Seller’s request, any other dealer of Seller) in any lawful arrangement to continue to provide Seller and the other applicable Bucyrus Entities (and, at Seller’s request, any other dealer of Seller) with the net benefits of the Non-Local Business Portion of any such Shared Contract to the extent (and only to the extent) that such benefits may be provided without violating applicable Legal Requirements or the terms of such Shared Contract and (B) Seller shall, or shall cause another Bucyrus Entity to (or, upon assignment of the Non-Local Business Portion of such Shared Contract to another dealer of Seller, such dealer shall be solely responsible to (provided that such dealer shall have contractually assumed and agreed to be bound by the obligations thereunder)), perform at its sole expense the obligations under the Non-Local Business Portion of such Shared Contract; provided, further, that Seller shall (or shall contractually require another of its dealers to) reimburse the Buyer Parties for any reasonable and documented out of pocket expenses incurred in connection with any such arrangement; and (ii) the Shared Contracts that are not marked with an asterisk or double asterisk on Schedule 6.13(a) (such Shared Contracts, the “Non-Local Business Shared Contracts”) shall be retained at the Initial Closing and the Canada Closing by the Seller Parties and shall constitute Excluded Contracts; provided, that to the extent reasonably within the contractual or other ability or control of Seller, (x) Seller shall, and shall cause the applicable Seller Parties to, cooperate with Buyer in any lawful arrangement to provide Buyer and the other applicable Buyer Parties with the net benefits of the Local Business Portion of any such Non- Local Business Shared Contract to the extent (and only to the extent) that such benefits may be provided without violating applicable Legal Requirements or the terms of such Non-Local Business Shared Contract (it being understood that if such Non-Local Business Shared Contract is assigned to another dealer of Seller, such dealer shall be solely responsible for cooperating in such lawful arrangement to provide the Buyer Parties with the net benefits of the Local Business Portion (provided that such dealer shall have contractually assumed and agreed to be bound by the obligations thereunder)) and (y) Buyer shall, or shall cause another Buyer Party to, perform at its sole expense the obligations under the Local Business Portion of such Non-Local Business Shared Contract; provided, further, that Buyer shall reimburse the Seller Parties (or, if applicable, such other dealer(s) of Seller) for any reasonable and documented out of pocket expenses incurred in connection with any such arrangement. (c) From and after the Initial Closing and, to the extent a [Redacted] 1 relates to the Canada Business, the Canada Closing, Buyer shall, or shall cause one of its Affiliates to, perform all of the obligations of Seller, its Affiliates and any of their respective dealers arising under any of the [Redacted], in each case to the extent relating to the Local Distribution Businesses. Without limiting the generality of the foregoing, Buyer or its designated Affiliate shall perform all such obligations for the maintenance, repair, servicing and assembly of any 1 All redactions in this 6.13(c) involve references to confidential customer contracts or parties - 35 -
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 and 12: into account in connection with the
Page 13 and 14: or the Canada Purchase Agreement or
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: Disclosure Schedules specifying suc
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
Page 63 and 64: “Canada Business” shall mean th
Page 65 and 66: Closing Date (with respect to the C
Page 67 and 68: “Initial Closing Business” shal
Page 69 and 70: “Lien” shall mean any charge, c
Page 71 and 72: detract from, materially diminish t
Page 73 and 74: “Transferred Employees” shall m
Page 75 and 76: EXHIBIT A-1 Canada Territories 1. A
Page 77 and 78: EXHIBIT B Form of Initial Closing T
Page 79 and 80: IN WITNESS WHEREOF, the parties her
Page 81 and 82: APPENDIX A 3 [APPENDIX TO BE COMPLE
Page 83 and 84: (other than the Initial Closing Ass
Page 85 and 86: FINNING INTERNATIONAL INC. By: ____
Page 87 and 88: EXHIBIT C-1 Form of Initial Closing
Page 89 and 90: 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
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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
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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
Page 119 and 120:
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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EXHIBIT C-4 Form of Initial Closing
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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
Page 145 and 146:
16.04 Taxes and Fees. Except as pro
Page 147 and 148:
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
Page 159 and 160:
Work Order Created From SAP BAAN Pr
Page 161 and 162:
EXHIBIT G Retained WIP and Retained
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SCHEDULES TO MASTER ASSET PURCHASE
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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 173 and 174:
Page 175 and 176:
D. Other Seller/Seller Party Buyer/
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Page 181 and 182:
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Page 185 and 186:
Page 187 and 188:
Page 189 and 190:
Initial Closing Territories Seller/
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Page 193 and 194:
Pl. Part Description TEREX DISTRIBU
Page 195 and 196:
Pl. Part Description - 31 - Current
Page 197 and 198:
Page 199 and 200:
Page 201 and 202:
Page 203 and 204:
Page 205 and 206:
Page 207 and 208:
Page 209 and 210:
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Page 215 and 216:
Page 217 and 218:
Page 219 and 220:
Page 221 and 222:
Page 223 and 224:
Page 225 and 226:
Page 227 and 228:
Page 229 and 230:
I. Excluded Inventory Schedule 1.1(
Page 231 and 232:
- 67 - Schedule 1.1(b) Excluded Ass
Page 233 and 234:
I. Assumed Other Current Liabilitie
Page 235 and 236:
Schedule 1.4 Preliminary Allocation
Page 237 and 238:
Schedule 6.6(a) Employees [Redacted
Page 239 and 240:
2. [Redacted reference to confident
Page 241 and 242:
I. Standard Bucyrus Warranties See
Page 243 and 244:
[Redacted confidential details rega
Page 245 and 246:
- 81 - Schedule 6.8 Warranty Matter
Page 247 and 248:
Page 249 and 250:
Page 251 and 252:
Page 253 and 254:
Page 255 and 256:
Page 257 and 258:
Page 259 and 260:
Page 261 and 262:
Page 263:
Page 267 and 268:
- 103 - Schedule 6.8 Warranty Matte
Page 269 and 270:
Page 271 and 272:
Page 273 and 274:
Page 275 and 276:
Page 277 and 278:
1. 2. Customer Name Mine / Site Bas
Page 279 and 280:
INTRODUCTION This Disclosure Schedu
Page 281 and 282:
Schedule 3.3(a)(iii) No Conflicts 1
Page 283 and 284:
16. Consigned Stock Agreement, date
Page 285 and 286:
49. Lease, dated July 29, 2010, bet
Page 287 and 288:
83. Contrato de Usuario de Zona Fra
Page 289 and 290:
Antofagasta Region, authorizing Buc
Page 291 and 292:
I. Section 3.6(a)(i) Schedule 3.6(a
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Blanca, S.A. 31. [Redacted referenc
Page 295 and 296:
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
Page 303 and 304:
12. Highvale Mine Warehouse, 4425 S
Page 305 and 306:
Canada Territories 1. None Initial
Page 307 and 308:
[Redacted certain confidential tax
Page 309 and 310:
Schedule 3.13 Title to Assets 1. Ba
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