MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

(d) any Excluded Assets;
(e) any obligation to any current or former customer for any product liability
claim made pursuant to any provision expressly contained in any Assumed Contract and that
relates to any product, part or service provided to such customer by Seller or the Bucyrus Entities
or their respective dealers prior to the Initial Closing or the Canada Closing (as applicable), but
only to the extent that the Buyer Indemnified Party establishes that the actions or omissions of
Buyer and its Affiliates and Representatives from and after the Initial Closing or the Canada
Closing (as applicable) did not contribute to or affect such liability;
(f) any obligation to any customer for liquidated damages under the Assumed
Contracts to the extent attributable to the failure of Seller or the Bucyrus Entities to manufacture
and deliver the products and parts required to fulfill such Assumed Contract on or prior to the
applicable due date determined in accordance with such Assumed Contract, except to the extent
that the actions or omissions of Buyer and its Affiliates and Representatives from and after the
Closing contributed to such Liability;
(g) any obligation to any customer for the failure of any part or product
supplied by Seller or the Bucyrus Entities to meet the requirements of any performance guaranty
(excluding, for the avoidance of doubt, any availability guaranty) expressly contained in any
Assumed Contract, but only to the extent that the Buyer Indemnified Party establishes that the
actions or omissions of Buyer and its Affiliates and Representatives from and after the Initial
Closing or the Canada Closing (as applicable) did not contribute to or result in the failure of the
applicable product or part to meet the requirements of such performance guaranty; or
(h) the non-compliance by Seller or the Seller Parties with the provisions of
any bulk transfer or bulk sale laws of any jurisdiction in connection with the transactions
contemplated by this Agreement.
Notwithstanding the foregoing or anything else to the contrary herein or in the Canada Purchase
Agreement, the Buyer Indemnified Parties shall have no right to indemnification under this
Section 9.1 with respect to any Loss to the extent relating to or resulting from the Canada
Business, the Canada Acquired Assets, any breach or default of this Agreement to the extent
relating to the Canada Business or the Canada Acquired Assets, any breach or default of the
Canada Purchase Agreement or any breach of, or inaccuracy in, any representation or warranty
made by Seller in this Agreement or any certificate delivered hereunder (to the extent relating to
the Canada Business or the Canada Acquired Assets) or under the Canada Purchase Agreement,
in each case until after the Canada Closing.
9.2 Buyer’s Indemnification of Seller. From and after the Initial Closing, Buyer shall
indemnify, defend and hold Seller, the Seller Parties and their respective Affiliates (collectively,
the “Seller Indemnified Parties”) harmless from, against and in respect of any Losses actually
incurred or suffered (regardless of when incurred or suffered), to the extent resulting from:
(a) any breach of, or inaccuracy in, any representation or warranty made by
Buyer in this Agreement on and as of the date of this Agreement and on and as of the Initial
Closing Date or on and as of the Canada Closing Date, as if made anew as of the Initial Closing
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