EXHIBIT 10.2
FORWARD PURCHASE AGREEMENT
for the acquisition of
the Class A Share in Purchaser
dated
December 16, 2006
2
Table of Contents
1. Certain Defined Terms and Abbreviations............................... 5
2. Current Status........................................................ 6
3. Sale and Transfer..................................................... 7
4. Purchase Price........................................................ 7
5. Forward Purchase Closing.............................................. 8
6. Guarantees of Hamburg Trust........................................... 9
7. Remedies for Breach of Guarantees..................................... 10
8. Bucyrus' Guarantees................................................... 11
9. Termination........................................................... 12
10. Confidentiality and Public Announcements.............................. 12
11. Agents; Notices....................................................... 12
12. Costs and Expenses.................................................... 13
13. Miscellaneous......................................................... 14
3
Index of Defined Terms and Abbreviations
Acquisition Financing ...................................................... 7
Affiliates ................................................................. 5
AktG ....................................................................... 5
Articles of Association .................................................... 6
Assignment Condition ....................................................... 8
BGB ........................................................................ 6
Breach ..................................................................... 10
Bucyrus .................................................................... 5
Business Days .............................................................. 6
CET ........................................................................ 6
Claim Notice ............................................................... 10
Class A Share .............................................................. 6
Company .................................................................... 6
DBT ........................................................................ 6
Forward Purchase ........................................................... 5
Forward Purchase Closing ................................................... 8
Forward Purchase Closing Date .............................................. 8
Forward Purchase Price ..................................................... 7
GmbHG ...................................................................... 6
Hamburg Trust .............................................................. 5
HGB ........................................................................ 6
Legal Entity ............................................................... 6
Legal Terms ................................................................ 14
Loss ....................................................................... 10
Losses ..................................................................... 10
Parties .................................................................... 5
Party ...................................................................... 5
RCI ........................................................................ 5
Regulations ................................................................ 10
Signing Date ............................................................... 6
SPA ........................................................................ 9
Termination Event .......................................................... 12
Third Party ................................................................ 6
4
List of Annexes, Exhibits and Disclosure Schedules
Exhibit 6.4 Prof. ▇▇. ▇▇▇▇▇▇▇'▇ Confirmation ........................... 10
5
FORWARD PURCHASE AGREEMENT
By and between
1. HMS Hamburg Trust GmbH (currently still operating under the name of
,,Ad acta" 676. Vermogensverwaltungsgesellschaft mbH),
▇▇▇▇▇▇▇▇▇▇▇(▇▇▇▇)▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇;
- "Hamburg Trust" -
and
2. Bucyrus Holdings GmbH, c/o Rechtsanwalte Freshfields Bruckhaus
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
- "Bucyrus" -
2. RAG Coal International Aktiengesellschaft, Rellinghauser Stra(beta)e
▇ - ▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
- "▇▇▇" -
- ▇▇▇▇▇▇▇ Trust, Bucyrus and RCI each a "Party" and
collectively the "Parties" -
Preamble
A. Hamburg Trust holds the Class A Share (as defined below)
representing 50.1% of the entire share capital in the Company (as
defined below) the sole business purpose of which is to hold all
shares in DBT GmbH, Lunen, Germany.
B. Hamburg Trust intends to sell and transfer the Class A Share to
Bucyrus, and Bucyrus wishes to acquire the Class A Share (the
"Forward Purchase") upon the occurrence of certain events.
Now, therefore, the Parties agree as follows:
1. Certain Defined Terms and Abbreviations
In this Agreement, except where set forth otherwise, the following
terms and abbreviations shall have the following meaning:
"Affiliates": any individual persons or Legal Entities who or which
are affiliated undertakings (verbundene Unternehmen) within the
meaning of Section 15 AktG.
"AktG": the German Stock Corporation Act (Aktiengesetz).
6
"Articles of Association": the articles of association of the
Company as amended from time to time.
"BGB": the German Civil Code (Burgerliches Gesetzbuch).
"Business Days": any days other than Saturdays, Sundays and public
holidays, in each case in Essen/Germany, Frankfurt am Main/Germany,
London/UK, the United States of America and the State of Wisconsin.
"CET": Central European Time.
"GmbHG": the German Act on Limited Liability Companies (Gesetz
betreffend Gesellschaften mit beschrankter Haftung).
"HGB": the German Commercial Code (Handelsgesetzbuch).
"Legal Entity": any corporation, company, partnership, association
or other legal entity or undertaking established pursuant to the
laws of any jurisdiction.
"Signing Date": the day on which this Agreement is notarized by the
Parties.
"Third Party": any person or Legal Entity other than a Party or an
Affiliate of a Party, including public governmental authorities.
2. Current Status
2.1 The Company. Hamburg Trust and Bucyrus established a limited
liability company (Gesellschaft mit beschrankter Haftung) pursuant
to German law, registered with the commercial register
(Handelsregister) maintained at the local court (Amtsgericht) of
Dusseldorf, Germany, under the name DBT Holdings GmbH (the
"Company") and registration number HRB 55323. The registered capital
(Stammkapital) of the Company amounts to EUR 50,000 (in words: Euro
fifty thousand). Its sole purpose is to hold all shares in DBT GmbH,
a German limited liability company with its registered seat (Sitz)
at Lunen and which is registered with the commercial register at the
municipal court (Amtsgericht) Dortmund under HRB 17120 ("DBT").
2.2 The Class A Share. As of the Signing Date, Hamburg Trust holds one
share of the registered capital of the Company with a nominal value
of EUR [25,050] which represents 50.1 % of the registered share
capital of the Company. Such share shall be referred to as the
"Class A Share". According to the Articles of Association and a
certain shareholders' agreement between Hamburg Trust and Bucyrus
the Class A Share confers upon its holder certain consent rights but
no voting rights, no dividend rights, and rights to liquidation
proceeds only up to a maximum amount of EUR 8,000,000. The remaining
share capital of the Company is held by Bucyrus.
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3. Sale and Transfer; Pledge
3.1 Sale and Transfer of the Class A Share. As of the Signing Date,
Hamburg Trust hereby sells (verkauft) the Class A Share to Bucyrus
which accepts such sale. Hamburg Trust hereby assigns (abtreten) the
Class A Share to Bucyrus subject (aufschiebend bedingt) only to the
fulfillment of all of the conditions set out in Section 5.1; Bucyrus
hereby accepts such assignment.
3.2 Effective Date of Sale. Beneficial title to the Class A Share shall
pass (wirtschaftlicher Ubergang) to Bucyrus as of the Forward
Purchase Closing (as defined below).
3.3 Condition subsequent. The sale and transfer according to this
Section 3 and the obligation to pay the Forward Purchase Price (as
defined below) according to Section 4 below shall no longer exist if
and to the extent the Class A Share has been effectively redeemed by
the Company or the pledges referenced in Section 3.4 have been
enforced.
3.4 Subordination of Pledge. Upon request by a relevant creditor, the
pledge granted by Hamburg Trust to Bucyrus under the Pledge
Agreement entered into on the date hereof shall be subordinated to
any security interest created under the financing agreements
relating to the acquisition of all shares in DBT by the Company and
any refinancing agreements relating thereto (the "Acquisition
Financing").
4. Purchase Price
4.1 Forward Purchase Price. The purchase price for the Class A Share
amounts to EUR 8,000,000 (in words: Euro eight million) (the
"Forward Purchase Price").
4.2 Payments.
4.2.1 Payment by Bucyrus. Within five Business Days after the occurrence
of the Assignment Condition Bucyrus shall pay the Forward Purchase
Price to Hamburg Trust.
4.2.2 Rules of Payment; Bank Accounts. Any payments under this Agreement
shall be made by wire transfer in immediately available funds, value
as of the relevant due date set out in this Agreement prior to 11.00
a.m. CET or otherwise provided by law, free of bank and / or any
other charges. Any payments under this Agreement shall be made to
the bank accounts of Hamburg Trust and / or Bucyrus as notified by
Hamburg Trust and / or Bucyrus before payment.
4.2.3 Interest. Except as expressly otherwise provided herein, any
payments due under this Agreement shall bear interest from and
including the respective due date to, but not including, the date of
actual payment at 5 % per year based on 360 days.
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5. Forward Purchase Closing
5.1 Forward Purchase Closing. The transfer of the Class A Share (the
"Forward Purchase Closing") shall become effective upon the
fulfillment of all of the following conditions (aufschiebende
Bedingungen):
(i) Fulfillment of the Assignment Condition as defined in Section
5.2 below;
(ii) payment of the Forward Purchase Price in accordance with
Section 4.2.1; and
(iii) the Company has not effectively redeemed the Class A Share
prior to the fulfillment of no. (i) and (ii) above.
The date on which the Forward Purchase Closing occurs is hereinafter
referred to as the "Forward Purchase Closing Date".
5.2 Assignment Condition. The Assignment Condition is fulfilled upon
occurrence of the earlier of
(i) delivery to Hamburg Trust of a written statement issued by an
investment bank of international standing stating that Bucyrus
is advised by such investment bank that a sale of less than 50
% of all shares in DBT in the course of a public offering has
occurred or will occur within no more than ten Business Days
from the date of such statement, but in no event prior to
January 1, 2008. If the public offering will not occur for any
reason after the statement has been delivered the Assignment
Condition under this (i) shall be deemed to have not been
satisfied and the assignment, to the extent it has already
become effective, shall be reversed; or
(ii) thirty (30) days following the delivery of a written notice
from Hamburg Trust to Bucyrus according to which Hamburg Trust
elects to complete the transfer of the Class A Share, provided
that any such notice shall be null and void if delivered prior
to October 1, 2009; or
(iii) any of the statements in Section 6.1 through 6.3 turning out
to be incorrect before, on or after the Signing Date; or
(iv) any of the statements in Section 6.4 turning out to be
incorrect before, on or after the Signing Date; or
(v) the initiation of any legal proceedings or other enforcement
measures (Zwangsvollstreckungsma(beta)nahmen) over the assets
of Hamburg Trust or the winding-up (Liquidation) of Hamburg
Trust; or
(vi) December 28, 2009.
(each of the events set forth in (i) through (vi) above first
occurring herein referred to as the "Assignment Condition").
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If any of the Assignment Conditions set forth in (iii) to (v) above
turns out to be incorrect before the Closing set forth in the share
purchase agreement as of the date hereof between, inter alia, the
Company and RCI (the "SPA") has been completed, such event shall
only constitute an Assignment Condition if and when RCI has not
exercised its rights to request a transfer of the Class A Share
according to Section 7.1.7 of the SPA up to the completion of such
Closing.
5.3 Forward Purchase Closing Information. The Parties shall immediately
(unverzuglich) inform each other with a copy to RCI of the
occurrence of the Assignment Condition and shall specify in writing
the date on which the Assignment Condition has occurred. In case of
Section 5.2 (ii) above, Hamburg Trust shall deliver a copy of the
relevant notice to RCI simultaneously with the delivery to Bucyrus.
6. Guarantees of Hamburg Trust
Hamburg Trust hereby guarantees (garantiert) to Bucyrus by way of an
independent guarantee within the meaning of Section 311 BGB that the
following statements are complete and correct as of the Signing Date
and as of the Closing Date according to the SPA, whereby it is
understood by the Parties that Hamburg Trust shall be liable for any
breaches of the representation in this Section 6 irrespective of any
fault of Hamburg Trust (verschuldensunabhangig), Hamburg Trust's
liability shall be subject to the modalities set forth in Section 7,
and in view of these modalities the guarantee in this Section 6
shall not constitute a warranty of the condition
(Beschaffenheitsgarantie) within the meaning of Section 444 BGB.
6.1 Status of Hamburg Trust. Hamburg Trust is a duly incorporated and
validly existing limited liability Company (GmbH) under the laws of
Germany and registered with the Commercial register at the municipal
court (Amtsgericht) Hamburg under HRB 99129. Hamburg Trust has the
power to own its respective assets and to carry on its respective
business. No insolvency or similar proceedings have been, or to
Hamburg Trust's best knowledge been threatened to be, applied for or
opened over the assets of Hamburg Trust or denied due to lack of
sufficient assets. Hamburg Trust is neither illiquid
(zahlungsunfahig) nor over-indebted (uberschuldet). This Agreement
constitutes legal, valid and binding obligations of Hamburg Trust
enforceable in accordance with its terms.
6.2 Class A Share. Hamburg Trust has free and clear title to the Class A
Share. The Class A Share is validly issued, fully paid, not repaid
and non-assessable. The Class A Share is free and clear of any
security interests, liens, pledges, or other encumbrances or rights
of Third Parties, Affiliates of Hamburg Trust or Affiliates of RCI
except as (i) for any pledge granted to Bucyrus, (ii) for any pledge
or other security interests granted in relation to the Acquisition
Financing or, (iii) explicitly provided for in this Agreement and is
not subject to any transfer restrictions or pre-emption or similar
acquisition rights except as set out in the articles of association
of the Company. Other than set forth in this Agreement, there are no
outstanding subscriptions, options, warrants or rights to acquire
the Class A Share.
6.3 Absence of Violations. The execution and delivery of and the
performance by Hamburg Trust of its obligations under this Agreement
(i) is within Hamburg Trust's
10
corporate powers, (ii) will not result in a breach of any provision
of its articles of association or equivalent constitutional
document, (iii) will not result in a breach of, or constitute a
default under, any instrument to which Hamburg Trust is a party or
by which Hamburg Trust is bound and which is material in the context
of the transactions contemplated by this Agreement, (iv) does not
require any approval by any governmental authority and (v) does not
result in a breach of any law, statute, regulation, directive
(including such of the European Union), ordinance, administrative
regulation, order, judgment, decision, notice, decree, permits,
awards or other legal norms of any court or governmental agency or
any other public body or arbitration tribunal or institution
("Regulations") by which Hamburg Trust is bound and which is
material in the context of the transactions contemplated by this
Agreement.
6.4 Prof. ▇▇. ▇▇▇▇▇▇▇'▇ Confirmation. All statements contained in the
confirmation by Prof. ▇▇. ▇▇▇▇▇▇▇ attached hereto as Exhibit 6.4 are
correct.
7. Remedies for Breach of Guarantees
7.1 Breaches. In the event that any of the statements made in Section 6
is incorrect (a "Breach"), Hamburg Trust shall pay to Bucyrus the
amount of any Losses which Bucyrus has incurred or suffered as a
result of the Breach (Wertersatz). "Loss" or "Losses" are all
damages according to Section 249 BGB, excluding, however,
consequential or indirect damages (Folgeschaden, mittelbare
Schaden), loss of profits (entgangener Gewinn), income taxes payable
as a result of any indemnity payment or other compensation,
frustrated expenses (vergebliche Aufwendungen) within the meaning of
Section 284 BGB, internal administration and overhead costs. Any
losses shall be computed net of any direct present or future
advantages and benefits (including avoided losses, tax benefits and
savings directly related to the relevant matter).
7.2 Notification, Investigation and Cooperation. Bucyrus shall notify
Hamburg Trust in writing of any Breach without undue delay (ohne
schuldhaftes Zogern) if it reasonably believes that a Breach exists
or discovers such Breach, stating in reasonable detail the nature
thereof and the estimated amount involved (the "Claim Notice").
7.3 Limitation Period. All Claims shall be time-barred (verjahren) after
the lapse of three years from the Forward Purchase Closing Date.
7.4 Suspension of Limitation. The limitation period for each individual
Claim shall only be suspended (gehemmt) in accordance with Section
209 BGB by a timely notification of Hamburg Trust for such
individual claim pursuant to Section 7.2, provided that Bucyrus
initiates a court proceeding within three months after receipt of
the notification by Hamburg Trust. Section 203 BGB shall not apply.
7.5 No further Rights or other Guarantees. The Parties agree that the
rights and remedies which Bucyrus may have against Hamburg Trust for
a Breach or any other breach of any obligation under this Agreement
shall be exclusively governed by this Agreement. Except for claims
for specific performance (primare Erfullungspflichten),
11
all rights, claims and remedies of any legal nature which the
Parties may otherwise have against each other in connection with
this Agreement or the transaction contemplated by this Agreement
shall be excluded to the extent such exclusion is possible under
applicable mandatory laws. This shall in particular apply to any
right to withdraw (zurucktreten) from, or otherwise terminate, this
Agreement or to require the winding up of the transactions
contemplated by this Agreement, any claims for breach of
pre-contractual obligations (culpa in contrahendo) including claims
under Sections 241 para. (2), 311 para. (2) and para (3) BGB, any
claims for breach of contract (Schadensersatz wegen
Pflichtverletzung) including claims under Sections 280, 282 BGB, any
claims based on frustration of contract (Storung der
Geschaftsgrundlage) including claims under Section 313 BGB, any
claims of Bucyrus for defects of the Shares or the business of the
Company under Sections 437 to 441 BGB, and any claims under tort
including claims under Sections 823 et seq. BGB, except for claims
for willful deceit (arglistige Tauschung) or other intentional
breaches of contract (vorsatzliche Vertragsverletzungen).
8. Bucyrus' Guarantees
8.1 Bucyrus' Representations. Bucyrus hereby guarantees (garantiert) by
way of an independent guarantee (verschuldensunabhangiges
Garantieversprechen) pursuant to Section 311 para. (1) BGB that the
following statements are true and correct on the Forward Purchase
Closing Date.
8.1.1 Status of Bucyrus. Bucyrus is a duly incorporated and validly
existing limited liability Company (GmbH) under the laws of Germany
with its registered seat in Dusseldorf and registered with the
commercial register (Handelsregister) of the local court
(Amtsgericht) of Dusseldorf under registration number HRB 55309.
Bucyrus has the power to own its respective assets and to carry on
its respective business. No insolvency or similar proceedings have
been, or to Bucyrus's best knowledge been threatened to be, applied
for or opened over the assets of Bucyrus or denied due to lack of
sufficient assets. Bucyrus is neither illiquid (zahlungsunfahig) nor
over-indebted (uberschuldet). This Agreement constitutes legal,
valid and binding obligations of Bucyrus enforceable in accordance
with its terms.
8.1.2 Absence of Violations. The execution and delivery of and the
performance by Bucyrus of its obligations under this Agreement (i)
is within Bucyrus's corporate powers, (ii) will not result in a
breach of any provision of its articles of association or equivalent
constitutional document, (iii) will not result in a breach of, or
constitute a default under, any instrument to which Bucyrus is a
party or by which Bucyrus is bound and which is material in the
context of the transactions contemplated by this Agreement, (iv)
does not require any approval by any governmental authority and (v)
does not result in a breach of any Regulation by which Bucyrus is
bound and which is material in the context of the transactions
contemplated by this Agreement.
8.2 Remedies. In the event of any breach or non-fulfilment of any
guarantee set forth in Sections 8.1.1 and 8.1.2 Bucyrus shall pay to
Hamburg Trust the amount of all Losses which Hamburg Trust has
incurred or suffered as a result of the breach or non-fulfilment of
the guarantee by Bucyrus.
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9. Termination
9.1 This Agreement shall become null and void (save for Section 9.2
below) in the event that the Closing under the SPA will not occur
and either of the parties thereto has rightfully withdrawn from the
SPA or the SPA has been terminated (the "Termination Event").
9.2 In case a Termination Event occurs Bucyrus shall have the right to
sell and transfer the Class B Share to Hamburg Trust simultaneously
(Zug-um-Zug) against payment of a purchase price in the amount of
the nominal value of the Class A Share. The costs and expenses for
the notarization of such transfer shall be borne equally by RCI and
Bucyrus.
10. Confidentiality and Public Announcements
10.1 Confidentiality in relation to the Company. The Parties shall keep
the knowledge about the Company and its Affiliates and their
business operations strictly confidential.
10.2 Confidentiality in relation to this Agreement and the Parties. The
Parties shall keep the knowledge obtained in connection with the
negotiations and execution of this Agreement with respect to this
Agreement, the transactions contemplated herein, the other Parties,
the Company and their Affiliates as well as information and
knowledge on or related to the SPA strictly confidential.
10.3 Announcements. Each of the Parties undertakes that it will not make
an announcement in connection with this Agreement unless (i) such
announcement or other disclosure is required by applicable law,
legal process or any applicable stock exchange (NASDAQ) rule or
regulation, or (ii) the timing and content of an announcement or
other disclosure regarding any aspect of the transactions
contemplated herein has been preceded by the written consent of the
other Party (which may be granted or withheld in its reasonable
discretion).
11. Agents; Notices
All notices and other communications hereunder shall be made in
writing in the English language and shall be hand delivered or sent
by telefax, mail or courier (unless other delivery requirements are
explicitly required) to the following addresses:
If to Hamburg Trust, to:
HMS Hamburg Trust GmbH
▇▇▇▇▇▇▇▇▇▇▇(▇▇▇▇)▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Telefax-No.: +49 - 40 - 60628 - 111
with a copy to:
13
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Telefax-No.: +49 - 40 - 8788698 - 40
If to RCI, to:
RAG Coal International AG
Rechtsabteilung
Attn. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇(▇▇▇▇)▇ ▇ - ▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Telefax-No.: +49 - 201 - 177 4039
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Attn: Dr. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telefax-No. +49 - 89 - 24 44 95 300
If to Bucyrus, to:
Bucyrus Holdings GmbH
c/o Freshfields Bruckhaus ▇▇▇▇▇▇▇▇
Attn. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telefax-No.: +49 - 211 - 4979 103
or to such other recipients or addresses which may be notified by
any Party to the other Parties in the future in writing.
12. Costs and Expenses
Except as expressly otherwise provided herein, all transfer taxes
(including real estate transfer taxes), stamp duties, fees
(including notarial fees), registration duties or other charges in
connection with any regulatory requirements (including merger
control proceedings) and other charges and costs payable in
connection with the execution of
14
this Agreement and the implementation of the transactions
contemplated hereby shall be borne equally by RCI and Bucyrus.
Except as expressly otherwise provided herein, each Party shall pay
its own expenses, including the costs of its advisors, incurred in
connection with this Agreement.
13. Miscellaneous
13.1 Exhibits. All Exhibits to this Agreement constitute a part of this
Agreement. In the case of a conflict between any Exhibit and the
provisions of this Agreement, the provisions of this Agreement shall
prevail.
13.2 Entire Agreement. This Agreement and the Exhibits shall comprise the
entire agreement between the Parties concerning the subject matter
hereof and shall supersede and replace all prior oral and written
declarations of intention made by the Parties in respect thereof.
13.3 Amendments. Any amendments to this Agreement (including amendments
to this clause) shall be valid only if made in writing, unless
mandatory law provides for stricter form requirements.
13.4 Interpretation. The headings in this Agreement are inserted for
convenience only and shall not affect the interpretation of this
Agreement. Except as set forth otherwise, all references to
"Section" refer to the corresponding Section of this Agreement. All
words used in this Agreement will be construed to be of such gender
or number as the circumstances require. The word "including" shall
not limit the preceding words or terms. Where this Agreement
provides that a Party shall procure a certain action or situation,
such Party shall be strictly liable, without regard to negligence or
other fault, for any Losses of the other Party resulting from the
fact that such action or situation is not brought about as agreed
(verschuldensunabhangige Erfolgshaftung). Wherever this Agreement
requires the disclosure of or otherwise refers to a contract or
other agreement, such disclosure requirement or other reference
shall apply to and include all ancillary agreements, amendments,
side letters, waivers and similar documents, if any, related
thereto.
13.5 Reference to German Legal Terms. Any reference made in this
Agreement to any types of companies or participations, proceedings,
authorities or other bodies, rights, institutions, Regulations or
legal relationships (herein collectively referred to as the "Legal
Terms") under German law shall extend to any corresponding or
identical Legal Terms under foreign law to the extent that relevant
facts and circumstances must be assessed under such foreign law.
Where no corresponding or identical Legal Terms under foreign law
exist, such Legal Terms shall be introduced as come closest to the
Legal Terms under German law.
13.6 German Terms. If provisions in this Agreement include English terms
with respect to which German terms have been inserted in brackets
and / or italics immediately after the English term, the respective
German terms alone rather than the English terms shall be
authoritative for the interpretation of the respective provisions.
15
13.7 Assignment.
13.7.1 Except as expressly set forth in this Agreement, no Party may
assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of each other
Party. Hamburg Trust hereby consents to the assignment of any claims
of Bucyrus under this Agreement to any banks or other lenders as
collateral for any debt incurred by Bucyrus or any Affiliate of
Bucyrus in connection with the financing of the Purchase Price or
any obligations of Bucyrus under this Agreement.
13.7.2 Neither this Agreement nor any provision contained in this Agreement
is intended to confer any rights or remedies upon any person or
entity other than the Parties.
13.8 Set-off and Retention. Except as otherwise agreed between the
Parties, no Party shall be entitled to set off (aufrechnen) or net
(verrechnen) against any claims of any other Party under or in
connection with this Agreement or to exercise any right of retention
(Zuruckbehaltungsrecht).
13.9 Governing Law. This Agreement shall be governed by, and be construed
in accordance with, the laws of the Federal Republic of Germany,
without regard to principles of conflicts of laws and under
exclusion of the United Nations Convention on Contracts for the
International Sale of Goods (CISG).
13.10 Jurisdiction. The regional court (Landgericht) in Essen shall have
the exclusive jurisdiction for any disputes.
13.11 Partial Invalidity. In the case that one or more provisions of this
Agreement shall be invalid or unenforceable, this shall not affect
the validity and enforceability of the other provisions of this
Agreement. In such case the Parties agree to recognize and give
effect to such valid and enforceable provision or provisions which
reflect as closely as possible the commercial intention of such
invalid or unenforceable provisions as regards subject matter,
amount, time, place and extent. The aforesaid shall apply mutatis
mutandis to any gap in this Agreement.
▇▇
▇▇▇ ▇▇▇▇▇▇▇ TRUST GMGH
By: /s/ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attorney-in-Fact
BUCYRUS HOLDINGS GMBH
By: /s/ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Attorney-in-Fact
RAG COAL INTERNATIONAL AKTIENGESELLSCHAFT
By: /s/ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Attorney-in-Fact
