MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

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ANNEX B TO EXHIBIT B FORM OF INITIAL CLOSING ASSIGNMENT AND ASSUMPTION <strong>AGREEMENT</strong> This ASSIGNMENT AND ASSUMPTION <strong>AGREEMENT</strong> (this “Agreement”) is made as of [●], 2012, by and among Caterpillar Global Mining LLC (f/k/a Bucyrus International, Inc.), a Delaware limited liability company (“Seller”), [[●], [●] and [●]] (each, a “Seller Party” and collectively, the “Seller Parties”), Finning International Inc., a corporation organized under the federal laws of Canada (“Buyer”), and [[●], [●] and [●]] (each, a “Buyer Party” and collectively, the “Buyer Parties”). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Purchase Agreement (as defined below). WHEREAS, Seller and Buyer are parties to that certain Master Asset Purchase Agreement, dated as of [●], 2012 (as the same may be amended from time to time in accordance with its terms, the “Purchase Agreement”), pursuant to which, and subject to the terms and conditions set forth therein, Seller has agreed to assign, or cause the applicable Seller Party to assign, to Buyer or the applicable Buyer Party all right, title and interest of Seller or such Seller Party in and to each of the Assumed Contracts, and Buyer has agreed to take, or cause the applicable Buyer Party to agree to take, assignment from Seller or the applicable Seller Party of all of Seller’s or such Seller Party’s right, title and interest in and to the Assumed Contracts, as applicable; and WHEREAS, pursuant to the Purchase Agreement, Buyer has agreed to, or cause the applicable Buyer Party to, assume, perform and discharge when due all of the Initial Closing Assumed Liabilities (other than the Initial Closing Assumed Contract Liabilities) and all of the Initial Closing Assumed Liabilities with respect to Initial Closing Assumed Contracts (the “Initial Closing Assumed Contract Liabilities”) that are being assigned to Buyer hereunder. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein, Seller, the Seller Parties, Buyer and the Buyer Parties hereby agree as follows: 1. Assignment of Initial Closing Assumed Contracts. On the terms and subject to the conditions of the Purchase Agreement, Seller and each of the Seller Parties hereby assigns and transfers to Buyer or the applicable Buyer Party and Buyer or the applicable Buyer Party hereby takes assignment from Seller or the applicable Seller Party of, all right, title and interest of Seller and the Seller Parties, as applicable, in and to the Initial Closing Assumed Contracts described on Appendix A. Notwithstanding the foregoing, neither Seller nor any Seller Party shall be deemed to assign or transfer hereunder any Initial Closing Assumed Contract or any claim, right, benefit or obligation thereunder if an assignment or transfer thereof, without the Consent of a third-party thereto, would constitute a breach or violation thereof or impose a Liability on Seller, the Seller Parties, Buyer or the Buyer Parties unless and until such a Consent has been obtained. 2. Assumption of Initial Closing Assumed Liabilities. On the terms and subject to the conditions of the Purchase Agreement, Buyer and the Buyer Parties hereby assume, and agree to pay, perform and discharge when due, all of the Initial Closing Assumed Liabilities B1-6 Exhibit B Form of Initial Closing Transfer Documents
(other than the Initial Closing Assumed Contract Liabilities) and the Initial Closing Assumed Contract Liabilities that are being assigned to Buyer pursuant to Section 1 above. 3. No Assumption of Retained Liabilities. Notwithstanding anything to the contrary contained herein, neither Buyer nor any of its Affiliates is assuming or otherwise liable in respect of, or shall be deemed to have assumed or otherwise be liable in respect of, any Retained Liability. 4. Purchase Agreement. This Agreement is being executed and delivered pursuant and subject to the Purchase Agreement. Nothing in this Agreement shall, or shall be deemed to, defeat, limit, alter or impair, enhance or enlarge any right, obligation, claim or remedy created by the Purchase Agreement. In the event of any conflict between this Agreement and the Purchase Agreement, the Purchase Agreement shall control. 5. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 6. Further Assurances. Upon the reasonable request of the other party, each party hereto agrees to execute and deliver to the other party all such additional assignments, assumptions, releases and other documents as may be reasonably requested by the other party and are required to effectuate completely the assignment by Seller or a Seller Party, and the assumption by Buyer or a Buyer Party, contemplated hereby and by the Purchase Agreement. 7. Applicable Law. This Agreement and any claims arising out of or relating to this Agreement or the transactions contemplated by this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law principles that would cause the application of the laws of any other jurisdiction.. 8. Counterparts. 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. [Signature page follows] B1-7 Exhibit B Form of Initial Closing Transfer Documents
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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
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 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: APPENDIX A 3 [APPENDIX TO BE COMPLE
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 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 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
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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(
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Seller/Seller Party Buyer/Buyer Par
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D. Other Seller/Seller Party Buyer/
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Initial Closing Territories Seller/
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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
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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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