MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

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extent alleged or otherwise determinable) the amount of such Third Party Claim. If any lawsuit or other action based on a Third Party Claim is filed against an Indemnified Party, such Indemnified Party shall deliver copies of the summons and complaint to the Indemnifying Party within ten (10) Business Days after the date upon which they are served upon such Indemnified Party. The failure to give notice of a Third Party Claim within the time parameters specified above shall not affect the liability of the Indemnifying Party except to the extent the failure materially and adversely affects the ability of the Indemnifying Party to defend the Third Party Claim. 9.5 Defense. (a) Upon providing written notice to the Indemnifying Party of a Third Party Claim pursuant to Section 9.4, within thirty (30) days after receiving such notice from the Indemnified Party, the Indemnifying Party shall be entitled to assume the defense of such Third Party Claim at the expense of the Indemnifying Party, with legal counsel reasonably satisfactory to the Indemnified Party, provided that the Indemnifying Party conducts the defense of such claim actively and diligently. If the Indemnifying Party assumes the defense of a Third Party Claim, then the Indemnified Party shall be entitled to retain separate co-counsel and participate in such defense at its own expense. Neither the Indemnifying Party nor the Indemnified Party may consent to the entry of any judgment or enter into any settlement with respect to such Third Party Claim without the prior written consent of the other, which consent will not be unreasonably withheld or delayed; provided, however, that the Indemnifying Party shall not be required to obtain such consent from the Indemnified Party in the event such settlement includes a full release of the Indemnified Party and involves only monetary damages and does not include any criminal penalties or fines. (b) If the Indemnifying Party does not assume the defense of any Third Party Claim, the Indemnified Party shall be entitled to direct the defense of such Third Party Claim, but the Indemnifying Party shall be entitled to participate in such defense (including retaining separate co-counsel) at its own expense. (c) In the defense or settlement of any Third Party Claim, the Parties shall cooperate with one another (and with each other’s counsel) in all commercially reasonable respects, including furnishing any documentation or other information reasonably requested by a Party or such Party’s counsel that is within the other Party’s or such other Party’s counsel possession or control. 9.6 No Duplicate Recovery. It is expressly understood and agreed that there shall be no duplication of amounts payable to or otherwise recoverable by an Indemnified Party under this Agreement and an ancillary agreement, document, certificate or instrument delivered hereunder (including the Canada Purchase Agreement) for a given Loss. By way of example, if there were an indemnifiable Loss for which an Indemnified Party would be entitled to indemnification for $100,000 and an indemnification claim could be made under both this Agreement and the Canada Purchase Agreement, such Indemnified Party would be entitled to recover a maximum of $100,000 for such Loss, regardless of whether separate claims for such Loss were or could be made under this Agreement and the Canada Purchase Agreement. - 46 -
9.7 Survival of Representations and Warranties. Each Party covenants and agrees that its representations and warranties contained in this Agreement and in any document delivered or to be delivered pursuant to this Agreement or the Canada Purchase Agreement, as amended, modified or supplemented pursuant to the Disclosure Schedules and any Schedule Supplement, shall survive the Initial Closing Date and/or the Canada Closing Date for the period specified in this Section 9.7 regardless of any investigation made by any Party, and shall not be considered waived by the other Party’s consummation of the transactions contemplated by this Agreement with knowledge of any breach or misrepresentation. The representations and warranties of the Parties contained in this Agreement and in any document delivered or to be delivered pursuant to this Agreement and the Canada Purchase Agreement, as amended, modified or supplemented pursuant to the Disclosure Schedules and any Schedule Supplement, shall (a) to the extent relating to the Initial Closing Business or the Initial Closing Acquired Assets survive the Initial Closing until the date that is twenty-four (24) months after the Initial Closing Date and (b) to the extent relating to the Canada Business or the Canada Acquired Assets survive the Initial Closing and the Canada Closing until the date that is twenty-four (24) months after the Canada Closing Date, provided, however, that the representations and warranties set forth in Sections 3.1 and 4.1 (relating to organization and power), Sections 3.2 and 4.2 (relating to authority), Section 3.3(c) (relating to solvency), Section 3.13 (relating to title) and Sections 3.15 and 4.8 (relating to brokers) (collectively, the “Fundamental Representations”) shall survive the Initial Closing and the Canada Closing indefinitely. 9.8 Adjustment of Purchase Price. Any amount payable by Seller pursuant to this Article 9 will be treated for applicable tax purposes as a reduction of the Initial Closing Purchase Price or the Canada Purchase Price (as applicable) and any amount payable by Buyer pursuant to this Article 9 will be treated for applicable tax purposes as an increase of the Initial Closing Purchase Price or the Canada Purchase Price (as applicable). 9.9 GST/HST Gross Up. If any payment made by the Seller or Buyer pursuant to this Article 9 is deemed by the Excise Tax Act (Canada) or similar legislation in any other jurisdiction to include goods and services tax/harmonized sales tax, or is deemed by any applicable provincial or territorial legislation to include a similar value added or multi-staged tax, the amount of such payment shall be increased accordingly. 10. Miscellaneous. 10.1 Successors and Assigns; No 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. 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 permitted assigns. 10.2 Notices. All notices, consents, requests, approvals, instructions and other communications to a Party shall be in writing and shall be deemed to have been duly given and received (a) if delivered personally, by courier or actually received, as of the date received, (b) if delivered by registered or certified mail, return receipt requested, as of two (2) Business Days after being mailed, (c) if delivered by a nationally recognized overnight delivery service, one (1) - 47 -
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 and 40: Disclosure Schedules specifying suc
Page 41 and 42: Initial Closing and (y) with a doub
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: event or circumstance that gave ris
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
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
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immediately prior to the Effective
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(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
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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
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16.04 Taxes and Fees. Except as pro
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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
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Work Order Created From SAP BAAN Pr
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EXHIBIT G Retained WIP and Retained
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SCHEDULES TO MASTER ASSET PURCHASE
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Schedule A Certain Bucyrus Entities
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Schedule B Products - 3 - Schedule
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I. Acquired Inventory Schedule 1.1(
Page 171 and 172:
Seller/Seller Party Buyer/Buyer Par
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D. Other Seller/Seller Party Buyer/
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Page 187 and 188:
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Initial Closing Territories Seller/
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Page 193 and 194:
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
Page 247 and 248:
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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:
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Page 275 and 276:
Page 277 and 278:
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
Page 307 and 308:
[Redacted certain confidential tax
Page 309 and 310:
Schedule 3.13 Title to Assets 1. Ba
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