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(d) Summit acknowledges that Argos USA LLC, the Company and Cementos are subject to the DPA, and that Summit has received a copy of the DPA. Summit acknowledges and agrees that the Transactions are subject to the obligations of the DPA. As required under paragraph (22) of the DPA, Summit acknowledges and agrees that unless the U.S. Department of Justice consents in its sole discretion that the Transactions will not be subject to paragraph (22) of the DPA, (i) Summit, or any successor in interest to Summit, shall be subject to and bound by the terms and conditions of the DPA and (ii) the U.S. Department of Justice shall have the ability to enforce all provisions of the DPA, including to determine that the DPA has been breached and is applicable in full force to Summit or any successor in interest to Summit. In connection with the Transactions, the Parties agree to use commercially reasonable efforts to seek to obtain consent from the U.S. Department of Justice that the Transactions will not be subject to paragraph (22) of the DPA. Such efforts shall include, in connection with the Transactions (i) cooperation in all reasonable respects and consultation with each other, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on written communications with the U.S. Department of Justice, (ii) promptly after the date hereof, and in any event at least thirty (30) days prior to the closing of the Transactions, notifying or causing the U.S. Department of Justice to be notified in writing of the Transactions in accordance with the DPA, (iii) promptly informing the other Party of any written communication received by such Party from, or given by such Party to, the U.S. Department of Justice, by promptly providing copies to the other Party of any such written communications, except for any such communications (and exhibits thereto) providing personal identifying or privileged information or information about Cementos or the Argos Parties, or as directed by U.S. Department of Justice; and (iii) permitting the other Party to review in advance any written communication that it gives to, and consulting with each other in advance of any meeting, telephone call, or conference with, the U.S. Department of Justice. Summit acknowledges that the ability to obtain any consent from the U.S. Department of Justice to the Transactions pursuant to DPA prior to the Closing is not a condition precedent to the Closing.
Section 7.02. Access to Information. From the date hereof until the Closing Date, the Company, Cementos and the Argos Parties shall, and the Company, Cementos and the Argos Party shall cause their respective Subsidiaries to, (a) upon reasonable advance notice, give Summit and its Subsidiaries and their respective Representatives reasonable access to the offices, properties, books and records of the ANAC Companies for the purpose of furthering the consummation of the Transactions and integration planning with respect thereto or obtaining the R&W Insurance Policy, and (b) instruct the Representatives of the ANAC Companies to cooperate with Summit and its Affiliates and their respective Representatives. Any request for data or other information, any request for access or cooperation or any investigation pursuant to this Section 7.02 shall be made or conducted in such manner as not to (i) interfere unreasonably with the conduct of the Business, (ii) result in the loss of any attorney-client privilege of the ANAC Companies or (iii) violate any Applicable Law; provided that in the cases of clauses (ii) and (iii), prior to withholding any access or information pursuant to the foregoing, the Company shall notify Summit in writing of the nature of the information being withheld and take any actions as may reasonably be requested by Summit, at Summit’s expense, to implement alternate arrangements in order to allow Summit such access or information to the fullest extent reasonably practicable under the circumstances without causing such loss or violation. No investigation by Summit, any of its Affiliates or any of their respective Representatives or other information received by, or knowledge of, Summit, any of its Affiliates or any of their respective Representatives shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the Argos Parties or Company hereunder. All information disclosed hereunder shall be governed by the terms of the Confidentiality Agreement. Notwithstanding anything in this Section 7.02 to the contrary, (A) nothing in this Section 7.02 shall require the Argos Parties, Cementos, the ANAC Companies or their respective Affiliates to disclose or provide any other party with access to any personnel records relating to individual performance or evaluations, medical histories or other information that in the disclosing party’s good faith opinion is sensitive or the disclosure of which could subject the disclosing party or its Affiliates to a material risk of liability or (B), physical access pursuant to this Section 7.02 may be limited to the extent that Cementos or the Argos Parties reasonably determine, in light of COVID-19 or any COVID-19 Measures, that such access would jeopardize the health and safety of any of its directors, officers, employees or Representatives.Section 7.03. Confidentiality; Public Announcements. (a) From and after the Closing and for so long as the confidentiality obligations contained in Section 4.6 of the Shareholders Agreement remain in effect, Cementos and the Argos Parties shall not disclose or use, and shall cause their respective Subsidiaries and shall instruct itsTABLE OF CONTENTS
and their respective Representatives not to directly or indirectly disclose or use, unless compelled to disclose by judicial or administrative process or by other requirements of Applicable Law or by any rule or regulation of any stock exchange (in which case such Argos Parties shall use reasonable best efforts to (x) consult with Summit prior to making any such disclosure to the extent permitted by Applicable Law and reasonably practicable under the circumstances and (y) at Summit’s expense, cooperate in connection with Summit’s efforts to obtain a protective order or confidential treatment), all documents and information concerning the ANAC Companies which such party obtained by virtue of its ownership of the ANAC Companies prior to the Closing (including trade secrets, confidential information and proprietary materials, which may include the following categories of information and materials: methods, procedures, computer programs and architecture, databases, customer information, lists and identities, employee lists and identities, pricing information, research, methodologies, contractual forms, and other information, whether tangible or intangible, which is not publicly available generally) (collectively, the “Confidential Information”), except to the extent that such Confidential Information that can be shown to have been (i) in the public domain through no fault of, or breach of this Agreement on the part of, any of the Argos Parties or any of their Affiliates or any of their respective Representatives and (ii) later lawfully acquired by such Argos Party on a non-confidential basis from sources other than the ANAC Companies, Summit or any of their respective Affiliates or their Representatives (or sources otherwise relating to any of the Argos Parties’ prior ownership of the ANAC Companies) and who are not known (after reasonable inquiry) to be under an obligation of confidentiality with respect thereto. Notwithstanding the foregoing, any such Person may disclose such Confidential Information (x) to his, her or its tax and financial advisors for purposes of complying with such Person’s tax obligations or other reporting obligations under Applicable Law arising out of the Transaction Documents or the Transactions and (y) to his, her or its legal counsel and accountants for the purpose of evaluating the legal and financial ramifications of the Transaction Documents or the Transactions, provided, that the provisions of this Section 7.03 will not prohibit any disclosure reasonably necessary or appropriate to enforce any right or remedy relating to this Agreement or the Transactions.
(b) On and after the Closing Date, upon reasonable advance written notice, Cementos and the Argos Parties shall, and shall cause their Subsidiaries to, provide any information to the extent relating to the ANAC Companies in their possession reasonably requested by Summit or any of its Subsidiaries, during normal business and without undue interruption, with respect to any period ending on or before the Closing Date and to the extent necessary or useful for Summit in connection with any audit, investigation, dispute or any other reasonable business purpose relating to the ANAC Companies. Notwithstanding anything herein to the contrary, no such access, disclosure or copying shall be permitted to the extent that such access (A) results in the loss of any attorney-client privilege of Cementos, any Argos Party or any of their respective Affiliates or (B) violates any Applicable Law; provided that in the cases of clause (ii), prior to withholding any such information, Cementos shall notify Summit in writing of the nature of the information being withheld and take any actions as may reasonably be requested by Summit, at Summit’s expense, to implement alternate arrangements in order to allow Summit access to such information to the fullest extent reasonably practicable under the circumstances without causing such loss or violation. Notwithstanding anything in this Section 7.03(b) to the contrary, physical access pursuant to this Section 7.03(b) may be limited to the extent that Cementos, any Argos Party or any of their respective Affiliates reasonably determines, in light of COVID-19 or any COVID-19 Measures, that such access would jeopardize the health and safety of any of its directors, officers, employees or Representatives.
(c) (i) The Parties agree to consult with each other before issuing or making any press release, having any communication with the press (whether or not for attribution) or making any other public statement with respect to this Agreement, the other Transaction Documents or the Transactions and (ii) the Parties shall not, and shall cause their Subsidiaries and instruct their Representatives not to, issue any such press release, have any such communication with the press or make any such other public statement regarding this Agreement, the other Transaction Documents or the Transactions without the prior written consent of the other Summit or Cementos (as applicable); provided that (A) the restrictions set forth in this Section 7.03(c) shall not apply to any release or public statement required by Applicable Law or any applicable listing authority (in which case the Parties shall use reasonable best efforts to (x) consult with each other prior to making any such disclosure to the extent permitted by Applicable Law and reasonably practicable under the circumstances and (y) cooperate in connection with such other Party’s efforts to obtain
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a protective order) and (B) a Party may make oral or written public announcements, releases or statements without complying with the foregoing requirements if the substance of such announcements, releases or statements was previously publicly disclosed in accordance with the foregoing requirements.
(d) The confidentiality and use restrictions with respect to Evaluation Material (as defined in the Confidentiality Agreement) of Cementos, Grupo Argos S.A. and their respective Subsidiaries in the Confidentiality Agreement are hereby incorporated by reference, mutatis mutandis, and shall continue in full force and effect until the second anniversary of the Closing; provided that the other terms and conditions of the Confidentiality Agreement shall terminate at the Closing.
Section 7.04. Books and Records. Summit shall cause the ANAC Companies to retain all books, ledgers, files, reports, plans, operating records and any other material documents pertaining to the ANAC Companies in existence at the Closing that are required to be retained under current Retention policies for a period of six (6) years from the Closing Date. From and after the Closing, upon reasonable advance written notice, Summit shall, and shall cause its Affiliates to, give Cementos and its Representatives reasonable access, during normal business hours, with reasonable notice and without undue interruption of Summit’s or such Affiliate’s business, to all books and records of the ANAC Companies in the possession of Summit or its Affiliates for periods prior to the Closing at reasonable times, and Cementos and its Representatives shall have the right, at their own expense, to make copies of any such books and records, but, in each case, solely to the extent, (w) reasonably required by any of the Argos Parties in connection with any Tax audit or other action by a Governmental Authority with respect to such Argos Party’s ownership of Purchased Shares prior to the Measurement Time, (x) necessary to comply with Applicable Law, or (y) related to the defense of a claim made by a Third Party. Notwithstanding anything herein to the contrary, no such access, disclosure or copying shall be permitted (a) for a purpose related to a dispute or potential dispute with Summit, the ANAC Companies or any of their respective Affiliates, (b) that results in the loss of any attorney-client privilege of the ANAC Companies or (c) that violates any Applicable Law; provided that in the cases of clause (b) and (c), prior to withholding any such information, such Summit shall notify Cementos in writing of the nature of the information being withheld and take any actions as may reasonably be requested by Cementos, at Cementos’s expense, to implement alternate arrangements in order to allow Cementos access to such information to the fullest extent reasonably practicable under the circumstances without causing such loss or violation. Notwithstanding anything in this Section 7.04 to the contrary, (A) nothing in this Section 7.04 shall require Summit or the ANAC Companies or their respective Affiliates to disclose or provide any other party with access to any personnel records relating to individual performance or evaluations, medical histories or other information that in the disclosing party’s good faith opinion is sensitive or the disclosure of which could subject the disclosing party or its Affiliates to a material risk of liability, and (B) physical access pursuant to this Section 7.04 may be limited to the extent that Summit or the ANAC Company reasonably determines, in light of COVID-19 or any COVID-19 Measures, that such access would jeopardize the health and safety of any of its directors, officers, employees or Representatives.Section 7.05. Indemnification; D&O Insurance.(a) From and after the Closing, the Company shall, and Summit shall, for a period of six (6) years following the Closing Date, indemnify and hold harmless each present and former director and officer of the ANAC Companies, as applicable, other than such Persons who immediately after the Closing are directors, officers, or employees of Cementos or Argos Party or any of their respective Affiliates, against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Closing, whether asserted or claimed prior to, at or after the Closing, to the fullest extent that the Company or any of its Subsidiaries, as the case may be, would have been permitted under Applicable Law and its respective articles of incorporation, articles of organization, operating agreement, bylaws or other organizational documents in effect on the date of this Agreement to indemnify such person (including promptly advancing expenses as incurred to the fullest extent permitted under Applicable Law); provided that, the applicable indemnified Person provides an undertaking to repay any such amounts to the extent such Person is found not to be entitled to such amounts pursuant to a final, non-appealable order of a court of competent jurisdiction or to the extent required by Applicable Law. For a period of six years after the Closing, Summit shall not, and shall not permit any member of the ANAC Companies to, amend, repeal or modify (in a manner adverse to the beneficiary thereof) any provision in any member of the ANAC Companies’ articles of incorporation, articles of
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organization, operating agreement, bylaws or other organizational documents relating to the exculpation or indemnification of any officers or directors, it being the intent of the Parties hereto that the officers and directors of any member of the ANAC Companies on the date hereof shall continue to be entitled to such exculpation and indemnification to the full extent of Applicable Law.
(b) At or prior to the Closing, the Company shall purchase a prepaid directors’ and officers’ liability insurance policy or policies (i.e., “tail coverage”) (the “D&O Tail”), in form and substance reasonably acceptable to Summit, which policy or policies shall cover those persons who are currently covered by any ANAC Company’s directors’ and officers’ liability insurance policy or policies of not less than the existing coverage and amount under, and otherwise on terms that are no less favorable than, those of such policy or policies for an aggregate period of not less than six years from the Closing Date with respect to claims arising from facts or events that occurred at or before the Closing, including with respect to the Transactions.
Section 7.06. Notices of Certain Events. Each Party shall promptly notify the other Parties in writing of the occurrence of any other matter or event, that would reasonably be expected to cause any condition(s) set forth in Article 9 not to be satisfied. Each Party shall notify the other Parties in writing of:(a) any written notice or other communication from any Person alleging that the consent of such Person arising out of any Contract is or may be required in connection with the Transactions;
(b) any written notice or other communication from any Governmental Authority in connection with the Transactions; and
(c) any Action commenced or, to its knowledge threatened against, relating to or involving or otherwise affecting such Party that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to Section 3.13, Section 4.06, or Section 5.06, as applicable or that relate to the consummation of the Transactions.
provided, however, that the delivery of any notice pursuant to this Section 7.06 shall not limit or otherwise affect the remedies available hereunder to the Party receiving that notice. In particular, the delivery of any notice by the Argos Parties or the Company to Summit hereunder shall not be deemed to constitute an exception to the representations and warranties made by the Company or the Argos Parties hereunder, nor limit the rights of Summit under this Agreement for any breach by the Company or the Argos Parties of such representations and warranties or have any effect for purposes of determining the satisfaction of the conditions set forth in Article 9. Notwithstanding anything to the contrary set forth herein, a breach by any Party of its obligations under this Section 7.06 shall not constitute a breach of this Agreement or a breach of the condition precedent set forth in Section 9.02(a) or Section 9.03(a) unless such breach is a willful and intentional breach.
Section 7.07. Termination of Affiliate Contracts and Accounts. Except with respect to the Excluded Arrangements, prior to the Measurement Time, Cementos, the Argos Parties and the Company shall, and shall cause the other ANAC Companies to, (i) pay, settle or discharge all account balances owed from any ANAC Company to Cementos, the Argos Parties or any of their respective Related Parties, and (ii) terminate (A) all Contracts listed on Section 7.07(ii) of the Company Disclosure Schedule and (B) all other Contracts between or among any ANAC Company, on the one hand, and any Related Party, on the other hand (including the Contracts listed on Section 3.23 of the Company Disclosure Schedule), in each case without any continuing direct or indirect Liability of any of the ANAC Companies thereunder; provided that prior to terminating any Contract not listed on Section 7.07(ii) of the Company Disclosure Schedule, the Company will notify Summit and Summit may elect for such Contract to remain in effect and (y) the Company may elect to cause the Promissory Notes specified in Section 2.02(b)(i) of the Company Disclosure Schedule to be paid off pursuant to Section 2.02(b) instead of terminated under this Section 7.07. The Company shall deliver to Summit written evidence reasonably satisfactory to Summit of each such termination prior to the Closing. For purposes of this Agreement, “Excluded Arrangements” means (i) any customary employment, severance or other similar arrangements with (x) directors and officers of any ANAC Company who are employees of any of the ANAC Companies or (y) employees of any ANAC Company (including, in each case, for avoidance of doubt, any invention or non-disclosure, restrictive covenant or similar agreements), (ii) compensation for services performed by a Related Party of an Argos Party as director, officer or employee of any ANAC Company andTABLE OF CONTENTS
amounts reimbursable for routine travel and other business expenses in the ordinary course of business to the extent included as a current liability in the calculation of Closing Net Working Capital, (iii) the Transaction Documents and (iv) any other arrangement set forth on Section 3.23(b) of the Company Disclosure Schedule.
| | | (a) Summit shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, consummate and obtain the Debt Financing (or, in the event any portion or all of the Debt Financing becomes unavailable, Alternative Financing) as promptly as practicable after the date hereof and in any event at or prior to the Closing, including using its reasonable best efforts to (i) maintain in effect and comply in all material respects with its obligations under the Debt Commitment Letter in accordance with the terms and conditions thereof, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing (the “Debt Financing Agreements”) on the terms and conditions contained in the Debt Commitment Letter or on other terms that are not materially less favorable (taken as a whole) to Summit than the terms and conditions (taken as a whole) set forth in the Debt Commitment Letter, subject to any amendments, modifications or supplements thereto, or replacements or waivers thereof, permitted pursuant to this Section 7.08, (iii) satisfy on a timely basis (or obtain a waiver of) all conditions applicable to Summit in the Debt Commitment Letter and, if applicable, the Debt Financing Agreements to the fullest extent that they are within its control, and (iv) enforce its rights under the Debt Commitment Letter at or prior to the Closing.
(b) Prior to Closing, Summit shall not (i) agree to or permit any amendment, supplement or other modification of, or waive any of its rights under, the Debt Commitment Letter, any Debt Financing Agreements or any other definitive agreements or documents related to the Debt Financing or (ii) substitute other debt financing for all or any portion of the Debt Financing from the same or Alternative Financing sources, in each case, without Cementos’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), except, solely in the case of the Debt Commitment Letter, any Debt Financing Agreements or any other definitive agreements or documents related to the Debt Financing, to the extent (A) such amendment, supplement, modification or waiver would not (1) reduce the aggregate amount of the Debt Financing (or the cash proceeds available therefrom), when taken together with cash on the balance sheet of Summit and drawings available under Summit’s revolving credit facility, below the amount required to consummate the transactions contemplated by this Agreement, (2) impose new or additional conditions precedent to any of the Debt Financing, or adversely amend, modify or waive any of the existing conditions thereto, (3) be reasonably expected to materially delay the funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing less likely to occur or (4) otherwise reasonably be expected to materially prevent or impair the availability of the amount of the Debt Financing required to consummate the transactions contemplated by this Agreement or the ability of Summit to consummate the transactions contemplated by this Agreement or enforce its rights against the other parties to the Debt Commitment Letter, the Debt Financing Agreements or any other definitive agreements or documents related to the Debt Financing (provided that, subject to compliance with the other provisions of this Section 7.08, Summit may amend the Debt Commitment Letter to add additional lenders, arrangers, bookrunners, managers or agents that have not executed the Debt Commitment Letter as of the date of this Agreement) and (B) with respect to any substitution for other debt financing under clause (ii) above, Summit reasonably determines (after consultation with Cementos) that the terms and conditions of such substitute debt financing, taken as a whole, are more favorable to Summit than the terms and conditions, taken as a whole, contemplated in the Debt Commitment Letter. Upon any such amendment, supplement or modification of the Debt Commitment Letter in accordance with this Section 7.08, Summit shall promptly provide a copy thereof to Cementos, and references to the “Debt Commitment Letter” shall include such documents as permitted to be amended, supplemented or modified under this Section 7.08, and references to the “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended, supplemented or modified under this Section 7.08.
(c) If for any reason all or any portion of the Debt Financing becomes unavailable on the terms and conditions or from the sources contemplated by the Debt Commitment Letter, Summit shall promptly (in any event within three Business Days) notify Cementos and use its reasonable best efforts to arrange and obtain, and to negotiate and enter into definitive agreements with respect to, alternative debt financing for any such portion from the same or alternative sources (the “Alternative Financing”) (i) as promptly as practicable following the occurrence of such event (and in any event on or prior to the date on which the Closing should have occurred
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pursuant to Section 2.03) and (ii) in an amount sufficient to, when taken with the available portion of the Debt Financing, cash on the balance sheet of Summit and drawings available under Summit’s revolving credit facility, (A) consummate the Closing upon the terms contemplated by this Agreement and (B) pay all other amounts payable by Summit in connection with the consummation of the transactions contemplated by this Agreement; provided, that, in no event shall Summit be required to, and in no event shall its reasonable best efforts be deemed or construed to require it to, obtain alternative financing that includes terms and conditions, taken as a whole, that are materially less favorable to Summit than the terms and conditions, taken as a whole, set forth in the Debt Commitment Letter as of the date hereof or would require it to pay any fees or agree to pay any interest rate amounts or original issue discount, in either case, in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof or which include any conditions to the consummation of such alternative debt financing that would reasonably be expected to make the funding of such alternative debt financing less likely to occur, than the conditions set forth in the Debt Commitment Letter as of the date hereof. If any Alternative Financing is obtained in accordance with this Section 7.08, Summit shall promptly notify Cementos thereof and references to the “Debt Financing,” and “Debt Commitment Letter” (and other like term in this Agreement) shall include such Alternative Financing, as applicable.
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| | | (a) The Argos Parties and Cementos shall, and shall use reasonable best efforts to cause the ANAC Companies and its and their respective Representatives (including legal and accounting advisors) to, provide, in each case at the sole cost of Summit, all cooperation reasonably requested by Summit to assist Summit in the arrangement of the Debt Financing, including, to the extent customary for the Debt Financing or any then-contemplated Alternative Financing or other substitute or replacement financing to be obtained in accordance with Section 7.08(c), by:
(i) participating (and causing senior management and using reasonable best efforts to cause advisors to participate) in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and investors with respect to, the Debt Financing), presentations, road shows, drafting sessions, due diligence sessions (including using reasonable best efforts to cause the Independent Auditor to participate therein) and sessions with rating agencies, in each case, at reasonable times to be mutually agreed and with reasonable notice;
(ii) providing reasonable and customary assistance with Summit’s preparation of materials for rating agency presentations and investor presentations (including “roadshow” or investor meeting slides), bank information memoranda, offering memoranda, private placement memoranda (including under Rule 144A under the Securities Act), confidential information memoranda, marketing materials and similar documents required in connection with the Debt Financing (and furnishing customary authorization letters in connection therewith (authorizing the distribution of information to prospective Debt Financing Sources or investors and containing customary representations, including with respect to the presence or absence of material nonpublic information about the ANAC Companies and regarding the accuracy of the information provided by, or with respect to, the ANAC Companies), executed by or on behalf of the Argos Parties and/or the Company and delivering customary certificates of a senior financial officer or other management comfort regarding financial information included in the 144A offering memorandum);
(iii) assisting with Summit’s preparation of (and using reasonable best efforts to cause the Independent Auditor to assist with Summit’s preparation of) pro forma financial statements for Summit customarily included in offering documents for high yield debt securities (or reasonably required by the Debt Financing Sources and their respective agents) (provided, that (A) Summit shall be responsible for the preparation of such pro forma financial statements and any pro forma adjustments giving effect to the transactions contemplated herein and (B) the Argos Parties’ and the Company’s assistance shall relate solely to the financial information and data derived from the Argos Parties’ and the ANAC Companies’ historical books and records);
(iv) with respect to the Company only, assisting Summit in obtaining from legal counsel (including local counsel) to the Company and their advisors any guarantee or pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as
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may be reasonably requested by Summit and as may be necessary and customary in connection with the Debt Financing, and otherwise facilitating the obtaining of guarantees and pledging of collateral in connection with the Debt Financing, in each case to be effective subject to the occurrence of the Closing and as of no earlier than the Closing;
(v) using reasonable best efforts to cause one of the other “big four” independent auditors (the “Independent Auditor”) to provide reasonable and customary assistance and cooperation in connection with the Debt Financing, including, using reasonable best efforts to cause the Independent Auditor to furnish consents for use in materials related to Debt Financing or any non-convertible, high-yield debt securities issued in lieu of all or a portion thereof and to deliver customary “comfort letters” (which shall provide customary “negative assurance” and change period comfort) for a Rule 144A placement of securities with respect to financial information contained in the offering materials relating to the Debt Financing (and using reasonable best efforts to provide customary representations to such Independent Auditor in connection with the foregoing);
(vi) furnishing to Summit all documentation and information at least four Business Days prior to the Closing Date as is reasonably requested in writing by Summit at least eight Business Days prior to the Closing Date about the Company including, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (each as defined in the Debt Commitment Letter), a beneficial ownership certificate that the Debt Financing Sources reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) following Summit’s reasonable request, causing directors of the Company who will continue to hold such positions from and after the Closing to execute resolutions or consents of the Company that do not become effective until the Closing to the extent reasonably necessary to permit the completion of the Debt Financing;
(viii) assisting with the payoff of existing indebtedness of the Company that will be repaid at or prior to Closing and the release of related liens on or prior to the Closing Date (including using reasonable best efforts to obtain customary payoff letters, lien terminations and other instruments of discharge, in each case in a form reasonably acceptable to Summit); and
(ix) using reasonable best efforts to cooperate with the Debt Financing Sources’ due diligence in connection with the Debt Financing, to the extent customary and reasonable; and
(x) providing Summit and the Debt Financing Sources with Required Information that is Compliant; provided that (A) in the case of Required Information contemplated in clause (i) of the definition thereof, such Required Information shall be provided when it becomes available and shall not otherwise be qualified by “reasonable best efforts” as set forth in this Section 7.09(a), (B) in the case of Required Information contemplated in clause (ii) of the definition thereof, Summit acknowledges such Required Information has been delivered to Summit prior to the date hereof and (C) in the case of Required Information contemplated in clause (iii) of the definition thereof, such Required Information shall be provided as soon as reasonably practicable following a written request by Summit with reasonable detail as to the Required Information then requested, and (II) updating such Required Information provided to Summit and the Debt Financing Sources as may be necessary for such Required Information to remain Compliant until completion of the Debt Financing.
(b) Notwithstanding anything to the contrary contained in this Agreement (including this Section 7.09), (i) nothing in this Agreement (including this Section 7.09) shall require any such cooperation to the extent that it would (A) require the Company to, to the extent not indemnified or reimbursed, (1) agree to make any payment (including any commitment or other fee or any expense reimbursement) in connection with the Debt Financing prior to the Closing or (2) incur any other liability or give any indemnity or otherwise incur any binding commitment or otherwise commit to take any action (including any corporate or comparable action) that is not contingent on the Closing (except for the authorization letters or management comfort contemplated by clauses (a)(ii) and (a)(v) of this Section 7.09 and the information requested pursuant to Section 7.09(a)(vi)) , (B) unreasonably interfere with the ongoing business or operations of the Argos Parties, the ANAC Companies or any of their respective Affiliates, (C) require the Argos Parties, any of the ANAC Companies or any of their respective Affiliates to take any
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action that would (1) jeopardize any attorney-client privilege (provided that the Argos Parties shall use reasonable best efforts to notify Summit that information is being withheld on such ground and shall use reasonable best efforts to disclose any information being withheld, in each case, to the extent such notification or disclosure would not result in the loss of such privilege), (2) violate any Applicable Law, (3) result in a breach of, or a default under, any Material Contract to which any of Cementos, the Argos Parties or the ANAC Companies or their respective Affiliates is a party that was not entered into for the purpose of avoiding performance under this Section 7.09, (4) violate any obligation of confidentiality (not created in contemplation hereof) binding on any of Cementos, the Argos Parties or the ANAC Companies or their respective Affiliates or disclose any information that is legally privileged, (5) breach, waive or amend any terms of this Agreement or (6) cause any condition to the Closing set forth in Section 9.01 and Section 9.03 to not be satisfied, (D) require the Argos Parties or any of its Affiliates (other than the ANAC Companies) or their respective directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives to enter into, approve or deliver any Debt Financing Agreement or other definitive agreement or document related to the Debt Financing, (E) require Cementos, the Argos Parties, the ANAC Companies, their Subsidiaries or their respective Representatives to seek any amendment, waiver, consent or other modification under any indebtedness (other than as required to give effect to the payoff of Indebtedness required by this Agreement to be effected on the Closing Date), or (F) result in any of the Argos Parties’, the ANAC Companies’ or any of their respective Affiliates’, directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives incurring any personal liability with respect to any matters relating to the Debt Financing, (ii) no action, liability or obligation of the ANAC Companies or their respective directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives under any certificate, agreement, arrangement, document or instrument (except for the authorization letters or management comfort contemplated by clauses (a)(ii) and (a)(v) of this Section 7.09) relating to the Debt Financing shall be required to be effective until the Closing, and (iii) the parties hereto agree that any information with respect to the prospects and plans for the Company’s business and operations in connection with the Debt Financing will be the sole responsibility of Summit, and none of the Argos Parties, the ANAC Companies, any of their respective Affiliates or their respective directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives shall be required to provide any information or make any presentations (other than the information and presentations contemplated by Section 7.09 and the Required Information) with respect to capital structure, the incurrence of the Debt Financing, other pro forma information relating thereto or the manner in which Summit intends to operate, or cause to be operated, the ANAC Companies after the Closing. Summit covenants and agrees that any materials distributed to lenders and other third parties in connection with any Debt Financing shall contain disclosures and disclaimers exculpating Cementos, the Argos Parties, the ANAC Companies and their respective directors and officers and other Representatives with respect to any liability related to the misuse thereof by the recipients thereof.
(c) Summit shall give Cementos prompt written notice of (i) any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to the Debt Commitment Letter, Debt Financing Agreement or other definitive agreement or document related to the Debt Financing, (ii) the receipt of any written notice or written communication from any party to any Debt Commitment Letter, Debt Financing Agreement or other definitive agreement or document related to the Debt Financing with respect to any actual or threatened material breach, default, withdrawal, early termination or repudiation of any provision of such Debt Commitment Letter, Debt Financing Agreement or other definitive agreement or document related to the Debt Financing, (iii) any amendment or modification of, or waiver under, any Debt Commitment Letter, Debt Financing Agreement or other definitive agreement or document related to the Debt Financing (without limitation to Section 7.08(b)) and (iv) Summit becoming aware of any fact, circumstance, event or other reason that could reasonably be expected to result in Summit not being able to timely obtain all or any portion of the Debt Financing in the amount required to consummate the transactions contemplated by this Agreement on the terms, in the manner or from the sources contemplated by the Debt Commitment Letters, Debt Financing Agreements or other definitive agreements or documents related to the Debt Financing. Summit shall keep Cementos reasonably informed on a reasonably current
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basis in reasonable detail of the status of its reasonable best efforts to arrange the Debt Financing (or Alternative Financing in accordance with Section 7.08(c)) and promptly provide to Cementos copies of all material documents related to the Debt Financing (or Alternative Financing in accordance with Section 7.08(c)).
(d) The parties hereto agree that, if Closing occurs, all amounts, fees and expenses paid or payable (a) by Summit or its Affiliates to any third party Person on or before the Closing in connection with the Debt Financing and/or the arrangement thereof or required to be paid at or following the Closing pursuant to the terms of the Debt Financing Letters (including, for the avoidance of doubt, any original issue discount) and (b) by Argos Parties or its Affiliates in connection with the Debt Financing and/or the arrangement thereof (including pursuant to actions and cooperation contemplated by Section 7.09(a) and (b) (the “Debt Expenses”) shall be borne by Summit. Notwithstanding anything to the contrary contained in this Agreement, if this Agreement is terminated prior to the Closing, (i) Summit shall promptly reimburse the Argos Parties for all reasonable and documented out-of-pocket costs and expenses (including attorney’s fees) incurred by the Argos Parties and their Affiliates in connection with the Debt Financing and/or the arrangement thereof (including the actions and cooperation contemplated by Section 7.09(a) and (b)) and (ii) Summit shall indemnify and hold harmless each Argos Party, its respective Affiliates and their respective directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives from and against any and all damages suffered by any of them in connection with the Debt Financing and/or the arrangement thereof (including any arising from or relating to the actions and cooperation contemplated by Section 7.09(a) and (b)) or any information used in connection therewith (other than (i) information furnished by or on behalf of the Argos Parties, Cementos or the ANAC Companies in writing specifically for use in connection with the Debt Financing or (ii) as a result of the gross negligence, fraud, bad faith or willful misconduct of the Argos Parties or the ANAC Companies or any of their respective Representatives).
(e) Summit acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement, Summit’s ability to obtain any financing for or related to the Transactions (including the Debt Financing) and the consummation of the Debt Financing shall not be conditions to any of the obligations of Summit under this Agreement or any Transaction Document, including the obligation to consummate the transactions contemplated by this Agreement or the other Transaction Documents.
(f) Notwithstanding anything to the contrary in this Agreement, a breach by the Argos Parties of their obligations under this Section 7.09 shall only be considered for purposes of the satisfaction of the condition precedent set forth in Section 9.02(a) to the extent such breach results in the failure of a condition precedent in the Debt Commitment Letter causing the Debt Financing not to be obtained.
| | | (a) From the Closing Date until the one-year anniversary of the Closing Date (or, if earlier, December 31, 2024) (or such shorter period of employment, as the case may be), Summit shall, or shall cause one of its Affiliates to, provide to each employee who is actively employed by an ANAC Company on the Closing Date (other than any employee covered by a Company Collective Bargaining Agreement) (each, a “Covered Employee”) with (i) base salary or hourly wages and target annual incentive opportunities (other than any equity-based compensation and other long-term incentives, any change in control, retention, transition, stay or similar arrangements) that are, in each case, no less favorable than those provided to the Covered Employee by an ANAC Company immediately prior to the Closing Date, (ii) retirement, health and welfare benefits (other than any defined benefit pension benefits and retiree medical benefits) that are substantially comparable in the aggregate to such benefits (other than any defined benefit pension benefits and retiree medical benefits) that were provided to such Covered Employee by an ANAC Company immediately prior to the Closing Date and (iii) severance protections no less favorable than the applicable severance protections set forth on Section 7.10(a) of the Company Disclosure Schedule.
(b) With respect to any “employee benefit plan” (as defined in Section 3(3) of ERISA) maintained by Summit or any of its Affiliates in which any Covered Employee is eligible to participate on or after the Closing Date, (i) for the purposes of determining eligibility to participate and vesting (but not for benefit accrual purposes (except for short-term disability, vacation and severance), such Covered Employee’s service with the ANAC Companies prior to the Closing Date shall be treated as service with Summit and its
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Affiliates to the same extent as such Covered Employee was entitled, before the Closing Date, to credit for such service under any analogous Company Employee Plan; provided that the foregoing shall not apply to the extent that it would result in any duplication of benefits and (ii) Cementos shall use commercially reasonable efforts to cause any pre-existing conditions or limitations and eligibility waiting periods to be waived with respect to the Covered Employees and their eligible dependents.
(c) Without limiting the generality of Section 12.09 nothing in this Agreement, whether express or implied, (1) shall be treated as an amendment or other modification of any Company Employee Plan or other employee benefit plan, agreement or other arrangement, (2) shall limit the right of Summit or its Affiliates to amend, terminate or otherwise modify any Company Employee Plan or other employee benefit plan, agreement or other arrangement following the Closing Date or (3) shall confer upon any other Person who is not a party to this Agreement (including any current or former Company Service Provider or any participant in any Company Employee Plan or other employee benefit plan, agreement or other arrangement (or any dependent or beneficiary thereof)) any right to continued or resumed employment or recall, any right to compensation or benefits, or any third-party beneficiary or other right of any kind or nature whatsoever.
(d) Summit shall, or shall cause one of its Affiliates to, implement the retention program on the terms set forth on Section 7.10(d) of the Company Disclosure Schedule.
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| | | Shared Contracts. (a) The Parties shall, and shall cause their Subsidiaries to, use their respective reasonable best efforts to work together (and, if necessary and desirable, to work with any Third Party to any Shared Contract) in an effort to divide, partially assign, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of any Shared Contract, such that the Company or its Subsidiaries are the beneficiaries of the rights and is responsible for the obligations related to that portion of such Shared Contract to the extent relating to the Business, and (b) Cementos, the Argos Parties or their respective Subsidiaries are the beneficiaries of the rights and are responsible for the obligations related to such Shared Contract to the extent not relating to the Business; provided that no Party shall be obligated to make any concessions or concede anything of value in order to effect such division, partial assignment, modification or replication. If the Parties, or their respective Subsidiaries, as applicable, are not able to enter into an arrangement to formally divide, partially assign, modify and/or replicate any Shared Contract prior to the Closing as contemplated by the previous sentence, then the Parties shall, and shall cause their respective Affiliates to, cooperate to endeavor to enter into any lawful and contractually permissible arrangement to provide that, following the Closing and until the earlier of 12 month after the Closing and such time as the formal division, partial assignment, modification and/or replication of such Shared Contract as contemplated by the previous sentence is effected, the Company or its Subsidiaries shall receive the interest in the benefits and obligations of the applicable portion of any Shared Contract to the extent relating to the Business and Cementos, Argos Party or their respective Subsidiaries shall receive the interest in the benefits and obligations of the applicable portion of such Shared Contract to the extent not relating to the Business. | | | |
| | | (a) If, between the Closing and the later of (x) the date that is three months after Summit’s filing of its 10-K in respect of the fiscal year ending in which the Closing occurs and (y) the date that is the one year anniversary of the Closing, the Argos Parties, Cementos or any of its or their respective Affiliates shall retain, receive or otherwise possess any asset, property, Contract or business (including any current asset or account receivable) (other than the Excluded Properties) (i) that was included in the final calculation of Closing Cash or as a current asset in Closing Net Working Capital, or (ii) is primarily related to the Business, Cementos shall notify Summit and, at Summit’s election, Cementos shall or shall cause its Subsidiaries to, promptly transfer, or cause to be transferred, such asset, property, Contract or business to the ANAC Companies or Summit, in each case free and clear of all Liens (except for Permitted Liens), at no cost to Summit or any of its Affiliates. Prior to any such transfer, the Person then holding or possessing such asset, property or business shall hold such asset in trust for Summit.
(b) If, between the Closing and the later of (x) the date that is three months after Summit’s filing of its 10-K in respect of the fiscal year ending in which the Closing occurs and (y) the date that is the
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one year anniversary of the Closing, the ANAC Companies or Summit or any of its Subsidiaries shall receive or otherwise possess any asset, property, Contract or business (including any current asset or account receivable) that (i) prior to the Closing, was exclusively used or held for use in the business of Cementos and its Subsidiaries (other than the Business) or (ii) is an Excluded Property, Summit shall notify Cementos and, at Cementos’s election, Summit shall, and shall cause its Subsidiaries (including the ANAC Companies) to, promptly transfer, or cause to be transferred, such asset, property or business to Cementos or its respective Affiliates at no cost Cementos or its Affiliates, in each case free and clear of all Liens (except for Permitted Liens). Prior to any such transfer, the Person then holding or possessing such asset, property or business shall hold such asset in trust for Cementos.
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| | | (a) Effective upon execution of this Agreement, and without any further act of any of the Argos Parties, Cementos is hereby approved to serve as the representative of the Argos Parties with respect to the matters expressly set forth in this Agreement to be performed by the Argos Parties’ Representative. Each of the Argos Parties hereby irrevocably appoints the Argos Parties’ Representative as the representative, agent, proxy and attorney-in-fact (coupled with an interest) for such Argos Party for all purposes of this Agreement and the other Transaction Documents, including full power and authority on such Argos Party’s behalf (i) to consummate the Transactions, (ii) to pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement and the other Transaction Documents, (iii) to disburse any funds received hereunder to such Argos Party and each other Argos Party, (iv) to execute and deliver on behalf of such Argos Party any amendment or waiver to this Agreement and the other Transaction Documents (without the prior approval of the Argos Parties), (v) to take all other actions to be taken by or on behalf of such Argos Party in connection herewith, (vi) to negotiate, settle, compromise and otherwise handle any claims made by any Indemnified Party or any claims and disputes otherwise arising under, or relating to, this Agreement and the other Transaction Documents (including, for the avoidance of doubt, the adjustment of Closing Consideration), and (vii) to do each and every act and exercise any and all rights which such Argos Party is, or Argos Parties collectively are, permitted or required to do or exercise under this Agreement and the other Transaction Documents. The grant of authority provided herein (x) is coupled with an interest and shall be irrevocable and survive the bankruptcy, dissolution or liquidation of each Argos Party and (y) shall survive the Closing.
(b) A decision, consent, waiver, instruction or other act of Cementos shall constitute a decision of all Argos Parties and shall be final, binding and conclusive upon each Argos Party (and no such Person shall have the right to object, dissent, protest or otherwise contest the same), and Summit shall be entitled to reasonably rely upon any decision, act, consent or instruction of Cementos as being the decision, act, consent or instruction of each Argos Party without any duty of inquiry or investigation. Summit and its Affiliates are hereby relieved from any Liability to any Person for any acts done by them in accordance with any such decision, consent, waiver, instruction or other act of Cementos. Summit and its Affiliates may disregard any notice or instruction received directly from any Argos Party, other than Cementos. Each Argos Party hereby agrees that for any Action arising under this Agreement or any Transaction Document such Argos Party may be served legal process by registered mail to the address set forth in Section 12.01 for Cementos (or any alternative address designated to the parties in writing by Cementos), and that service in such manner shall be adequate and such Argos Party shall not assert any defense of claim that service in such manner was not adequate or sufficient in any court in any jurisdiction.
(c) Cementos shall cause each Argos Party to perform its obligations under this Agreement. Cementos hereby unconditionally and irrevocably guarantees to Summit the performance by the Argos Parties of their obligations hereunder, and the payment in full when due of any and all amounts payable by any of the Argos Parties under this Agreement or the other Transaction Documents (the “Guaranteed Obligations”). The Liability of Cementos under the guarantee contemplated in this Section 7.15(c) (the “Guarantee”) will be coextensive with, but not in excess of, the Liability of the Argos Parties to Summit under this Agreement. The Guaranteed Obligations shall not be subject to release or discharge, in whole or in part and shall not be affected by (i) any change in corporate existence, structure or ownership of Cementos, the Argos Parties, the Company or any other Person, (ii) the adequacy of any other means Summit may have of obtaining payment related to the Guaranteed Obligations from any other Person, (iii) any suretyship defense of Cementos, (iv) any defense or set-off, counterclaim or recoupment, and (v) any invalidity, illegality or
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unenforceability of this Guarantee; provided that if the Argos Parties or any of their Affiliates fulfill any of the Guaranteed Obligations, Cementos shall not have separate liability for such Guaranteed Obligation. Cementos shall take all action necessary to cause the Argos Parties and the Company to perform their respective obligations pursuant to this Agreement and the other Transaction Documents and to consummate the Transactions upon the terms and subject to the conditions set forth in this Agreement and the other Transaction Documents. Cementos and the Argos Parties shall be jointly and severally liable for the failure by the Argos Parties or, prior to the Closing, the Company to perform and discharge any of their respective covenants, agreements and obligations pursuant to this Agreement.
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Section 7.16. Resignations. At least three Business Days prior to the Closing Date, Cementos shall deliver to Summit a true and complete list of the directors and officers for each of the ANAC Companies, certified by an officer of Cementos. At or prior to Closing, Cementos shall use reasonable best efforts to deliver to Summit the resignations of each such director that is not an employee of an ANAC Company requested by Summit from their director positions with the ANAC Companies effective as of the Closing (such resignations collectively, the “Resignation Letters”). | | | | | | |
(a) Cementos, the Argos Parties and their respective Subsidiaries and Affiliates shall retain all rights under and to control their respective insurance policies (including insurance policies that are no longer in effect, regardless of whether self-administered or administered by a third party) (the “Retained Policies”), including the right to exhaust, settle, release, commute, buy back or otherwise resolve disputes with respect to any of their respective Retained Policies notwithstanding whether any such Retained Policies relate to any Liabilities of the applicable ANAC Company. Following the date hereof, each of Cementos and each Argos Party shall cooperate, at Summit’s sole expense, with the efforts of the ANAC Companies to secure new insurance policies or obtaining “tails” to any Retained Policies, in each case, appropriate for such ANAC Company’s business following the Closing.
(b) For any claim asserted against any ANAC Company or any of its Subsidiaries arising out of an occurrence taking place prior to the Closing (“Post-Closing Claims”), the ANAC Companies and their Subsidiaries may access coverage under any occurrence-based Retained Policies of Cementos, any Argos Party and their respective Subsidiaries and Affiliates in place prior to the Closing under which any ANAC Company or any of its Subsidiaries is insured (the “Pre-Closing Occurrence-Based Policies”), to the extent such insurance coverage exists and provides coverage and would be brought in accordance with past practice if the Closing had not occurred, without cost to Cementos, any Argos Party and their respective Subsidiaries and Affiliates, for such Post-Closing Claim. Cementos, any Argos Party and their respective Subsidiaries and Affiliates shall reasonably cooperate with the ANAC Companies and their Subsidiaries in connection with the tendering of such claims; provided, that the ANAC Companies shall (i) promptly notify Cementos, any Argos Party and their respective Subsidiaries and Affiliates of all such Post-Closing Claims, (ii) be responsible for the satisfaction or payment of any applicable retention, deductible or retrospective premium with respect to any Post-Closing Claim and (iii) reimburse Cementos, any Argos Party and their respective Subsidiaries and Affiliates, as applicable, for all reasonable out-of-pocket costs and expenses incurred in connection with such claims.
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| | | R&W Insurance Policy. Following the date hereof, Summit shall take all action reasonably necessary, to the extent in Summit’s reasonable control, to bind the R&W Insurance Policy and cause the R&W Insurance Policy to go into effect as of the Closing, and shall use reasonable best efforts to cause such policy to be in substantially the form made available to Cementos prior to the date of this Agreement, and shall in any event include terms to the effect that the R&W Insurance Policy insurers waive their rights to bring any claim against Cementos, any Argos Party or any other Argos Party Indemnified Party by way of subrogation, claim for contribution or otherwise (in each case, except in the event of Fraud) and will ensure that such terms are held by Summit in trust for Cementos, any Argos Party or any other Argos Party Indemnified Party. Summit shall not grant any right of subrogation or amend, modify, terminate or waive any anti-subrogation provision set forth in the R&W Insurance Policy in a manner inconsistent with the immediately preceding sentence. Cementos and the Argos Parties shall, and shall cause the ANAC Companies to, reasonably cooperate with Summit and the R&W Insurance Policy insurer and its Representatives in connection with obtaining R&W Insurance Policy, including by reasonably cooperating with the insurer’s due diligence investigation of the Company, and any follow-up or bring-down requests related thereto (which shall include using good faith efforts to provide as | | | A-71TABLE OF CONTENTS
promptly as reasonably practicable after any reasonable request is made therefor, and responses and underlying documents reasonably responsive to such requests to the extent reasonably available), in each case, subject to the Access Restrictions. If an R&W Insurance Policy is obtained by Summit shall deliver to Argos Party a copy of any R&W Insurance Policy upon it becoming issued and effective.
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| | | (a) Following the date hereof, to the extent any guarantees or other credit support obligations of Cementos, any Argos Party or any of their Affiliates (other than any ANAC Company) (in such capacity, a “Argos Party Guarantor”) relating to any ANAC Company or the Business (the “Argos Party Guarantees”), the Parties shall use reasonable best efforts and cooperate to (i) have each such Argos Party Guarantor fully and unconditionally released from all obligations and liabilities relating to, arising under or out of, or in connection with the Argos Party Guarantees, and (ii) terminate and/or enter into substitute arrangements (to the extent requested by Summit) (the “Substitute Specified Support Obligations”) with respect thereto; provided that Summit or any ANAC Company shall not be required to make any payment or grant any concession to effect such release or termination (except for providing a substitute letter of credit or substitute guaranty).
(b) To the extent such Argos Party Guarantor is not fully and unconditionally released from any Argos Party Guarantee, Summit shall defend, indemnify and hold harmless such Argos Party Guarantor from and against any Damages that such Argos Party Guarantor may suffer or incur, or that may be made or brought against it, as a result of, in respect of, arising out of or in connection with such Argos Party Guarantor making payment under any such Argos Party Guarantees in respect of obligations of the ANAC Companies, in each case, without any set-off, restriction, condition or deduction for or on account of any counterclaim.
| | | A-72Section 7.21. Summit Preferred Stock. |
(a) Following the date hereof and prior to the Closing, Summit shall prepare a certificate of designation (the “Certificate of Designation”) in a form reasonably satisfactory to Cementos for the Summit Preferred Stock to be issued to Cementos at the Closing as part of the Aggregate Stock Consideration, which Summit Preferred Stock (a) shall be issued to, and at all times held solely by, Cementos and shall not in any event be Transferable (as defined in the Stockholder Agreement, but without giving effect to clause (iii) in the proviso thereof) without the prior written consent of the Summit Board, (b) shall entitle the holder thereof to no economic rights whatsoever (and no dividends or other distributions shall be declared or paid on the Summit Preferred Stock), (c) shall not be entitled to vote on any matter; provided that, (x) solely during a Preferred Voting Window, and subject in all respects to the terms, conditions, obligations and limitations set forth in the Stockholder Agreement, the Summit Preferred Stock shall entitle the holder thereof to vote together with the holders of Summit Common Stock and the Summit Class B Common Stock as a single class, on any matter for which the holders of Summit Common Stock and Summit Class B Common Stock are generally entitled to vote, and (y) on such matters referred to in the forgoing clause (x), the vote of the share of Summit Preferred Stock will represent the minimum number of votes as would allow the holder thereof to have a Voting Interest of 25.01% (with the Summit Preferred Stock voting together as a single class with the Summit Common Stock and the Summit Class B Common Stock) in respect of any matter that is the subject of approval by the holders of the Summit Common Stock and the Summit Class B Common Stock generally, and (d) shall be immediately and automatically cancelled, without consideration and with no further action on the part of any Person, upon the earliest to occur of (i) a Change of Control of Summit, (ii) such time as Investor Anchor has a Voting Interest equal to or less than 25.00% and the Trading Period in respect of the applicable Top-Up Event has expired, or (iii) such Summit Preferred Stock is held by any Person other than Cementos, in the case of clause (i) or (iii), without the prior written consent of the Summit Board. For the avoidance of doubt, any rights, preferences and privileges set forth in any Certificate of Designation in respect of the Summit Preferred Stock may only be exercised by Cementos and no other Person without the prior written consent of the Summit Board. Any Summit Preferred Stock transferred to Summit shall be automatically retired. Capitalized terms used but not otherwise defined in this Section 7.21 shall have the meanings ascribed to such terms in the Stockholder Agreement.
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(b) A “Preferred Voting Window” shall mean the period commencing on the date immediately preceding the consummation of an M&A Issuance and ending 90 Trading Days thereafter, but only if (i) at all times following the Closing Date until immediately prior to the consummation of such M&A Issuance, Investor Anchor maintained a Voting Interest in excess of 25.00%, or at any time Investor Anchor did not, had Top-Up Rights that would allow Investor Anchor to exceed the 25.00% Threshold during any associated Trading Period, (ii) the M&A issuance identified in the Transaction Notice would reasonably be expected to result in Investor Parent being deemed, on or about the date of the Triggering Event (as defined below), an “investment company” for purposes of the Investment Company Act of 1940 (the “Investment Company Act”) (taking into account any exemptions or exceptions that may be available thereunder, including the exception set forth in Rule 3a-2 thereunder but excluding any exemption under Section 3(b) of the Investment Company Act), (iii) Investor Anchor has present intent to purchase additional shares of Common Stock after the closing of the transaction contemplated in the Transaction Notice, in order to ensure that its Voting Interest will be in excess of 25.00%, but subject to the other limitations set forth in the Stockholder Agreement, and (iv) Summit does not make an M&A Anti-Dilution Offer in accordance with Section 4.5(j) of the Stockholder Agreement; provided that, the Preferred Voting Window shall immediately and automatically terminate, with no further action on the part of any Person, if Investor Anchor Transfers (as defined in the Stockholder Agreement, but without giving effect to clause (iii) in the proviso thereof), any Voting Securities at any time from the date on which the Summit Board approves the M&A Issuance until the date that is the end of such Preferred Voting Window.
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ARTICLE 8
TAX MATTERS | | | |
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| | | | | | A-73Section 8.02. Tax Returns. Summit shall prepare, or cause to be prepared, and file, or cause to be filed, all Tax Returns required to be filed (taking into account extensions of time to file) by the ANAC Companies after the Closing Date with respect to all Pre-Closing Tax Periods. Each such Tax Return shall be prepared in a manner consistent with past practice, if any, unless otherwise required by applicable Tax law. If such Tax Return is an income Tax Return, it shall be submitted by Summit to the Argos Parties for their review and approval at least 30 days before the due date (including extensions) of such Tax Return, and Summit shall implement any revision reasonably requested by the Argos Parties, to the extent they relate to Indemnified Taxes, to such Tax Returns at the Argos Parties’ request in writing not later than ten days before the due date of such Tax Return (taking into account extensions of time to file). If such Tax Return is not an income Tax Return, it shall be submitted by Summit to the Argos Parties for their review and approval at least 15 days before the due date (including extensions) of such Tax Return (or, if such timing is not practicable, as far in advance of the due date (including extensions) for such Tax Return as is practicable), and Summit shall implement any revision reasonably requested by the Argos Parties, to the extent they relate to Indemnified Taxes to such Tax Returns at the Argos Parties’ request in writing not later than ten days before the due date of such Tax Return (taking into account extensions of time to file). The Argos Parties shall pay, or cause to be paid all Taxes of each ANAC Company shown as due and payable on any Tax Return that constitute an Indemnified Tax at least five days prior to the date on which such Taxes are due to be paid, to the extent such Taxes are not otherwise taken into account in connection with the determination of the Closing Consideration as finally determined pursuant to Article 2. |
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and information which are reasonably relevant to any such audit or other proceeding and within such party’s possession or obtainable without material cost or expense, and making employees or other representatives available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
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| | | Straddle Tax Periods. For all purposes under this Agreement, in respect of any Straddle Tax Period, the portion of Taxes that are allocable to a Pre-Closing Tax Period will be: (x) in the case of any ad valorem and property Taxes, the amount of such Tax for the entire Straddle Tax Period multiplied by a fraction the numerator of which is the number of days in the Straddle Tax Period ending on and including the Closing Date and the denominator of which is the number of days in the entire Straddle Tax Period, and (y) in the case of any other Taxes, the amount that would be payable if the relevant Straddle Tax Period ended on and included the Closing Date; provided, that the taxable year of any ANAC Company that is a “controlled foreign corporation” (as defined in the Code) shall be deemed to have closed on the Closing Date, including for purposes of computing any inclusion under sections 951 and 951A of the Code (or any corresponding or similar provision of U.S. state or local law). The amount of any item that is taken into account only once for each taxable period (e.g., the benefit of graduated Tax rates, exemption amounts, etc.) shall be allocated between the two portions of the Straddle Tax Period in proportion to the number of days in each portion. | | | |
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| | | Tax Proceedings. Any party that receives written notice of any claim for Taxes or the commencement of any audit, examination, contest, investigation or assessment relating to Taxes of the ANAC Companies (a “Tax Proceeding”) with respect to an Indemnified Tax shall notify such other party within 10 Business Days of receipt of such notice; provided that the failure to provide such notice shall not relieve the Indemnifying Party from any of its obligations under Article 10 except (and only) to the extent the Indemnifying Party suffers an actual prejudice as a result of such failure. Subject to the last sentence of Section 10.03(c), the Argos Parties shall have the right to control the conduct of any Tax Proceeding that relates solely to Indemnified Taxes; provided that (A) the Argos Parties shall: (1) permit Summit to participate in the resolution of such Tax Proceeding and (2) not settle or otherwise compromise such Tax Proceeding without the prior written consent of Summit, which consent shall not be unreasonably withheld, conditioned or delayed; and (B) if the Argos Parties fail to assume control of any such Tax Proceeding after having had reasonable opportunity to do so, Summit may elect to control the handling, disposition and settlement of such proceeding at Argos Party’s expense and the Argos Parties shall pay any Taxes related thereto; provided that Summit shall not settle or otherwise compromise such Tax Proceeding without the prior written consent of the Argos Parties, which consent shall not be unreasonably withheld, conditioned or delayed. Summit shall have the right to control the conduct of all other Tax Proceedings (including any Tax Proceedings related to a Straddle Tax Period); provided that in the event that any Tax Proceeding relates to a Straddle Tax Period and could affect the Tax liability of the Argos Parties or includes Indemnified Taxes, Summit shall: (1) permit the Argos Parties to participate in the resolution of such Tax Proceeding and (2) not settle or otherwise compromise such Tax Proceeding in relation to any Indemnified Tax without the prior written consent of the Argos Parties, which consent shall not be unreasonably withheld, conditioned or delayed. | | | |
| | | (a) The Argos Parties shall have no obligation to indemnify Summit to the extent that
(i) the Indemnified Taxes were taken into account to reduce the Closing Consideration as finally determined pursuant to Article 2 of this Agreement;
(ii) the Indemnified Tax results from a breach by Summit of any provision of this Agreement; and
(iii) the Indemnified Tax gives rise to a Tax benefit that is actually realized (determined on a “with and without” basis) by Summit or any of its Affiliates (including, for the avoidance of doubt, the ANAC Companies) as a result of such Indemnified Tax in the year such Indemnified Tax is due.
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(b) Except as required by applicable law or with prior written consent of the Argos Parties, on or after the Closing Date, Summit shall not and shall not cause or permit the ANAC Companies or any of its Affiliates to (i) make, change, or revoke any Tax election (including under Sections 336 or 338 of the Code) under applicable Law with respect to any of the ANAC Companies in respect of, or that has retroactive effect to, any taxable period ending on or prior to the Closing Date; (ii) initiate or permit any ANAC Company to initiate any contact with any Taxing Authority regarding any voluntary disclosure or similar procedures involving Taxes for any Pre-Closing Tax Period; (iii) file any ruling or request with any Taxing Authority that relates to Taxes or Tax Returns of any ANAC Company for a Pre-Closing Tax Period; (iv) make or change any Tax election or accounting method that has any effect with respect to any Pre-Closing Tax Period of any ANAC Company; or (v) amend any Tax Return of any ANAC Company for any Pre-Closing Tax Period, except as required by a Governmental Authority, in the cases of each of clauses (i) through (v) above, to the extent such action (or inaction) would reasonably be expected to: (A) increase Taxes for which the Argos Parties would be liable or (B) decrease the amount of any Tax refund to which the Argos Parties are entitled under this Agreement.
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| | | (a) Summit shall reimburse the Argos Parties for any Tax refund attributable to any Indemnified Taxes (net of any expenses associated with such refund or Taxes resulting from the receipt thereof) received by Summit or the ANAC Companies after the Closing Date except to the extent of such refund that has otherwise increased the Closing Consideration as finally determined pursuant to Article 2 of this Agreement.
(b) Summit shall, and shall cause the ANAC Companies to, promptly notify the Argos Parties in writing of the receipt of any Tax refund described in Section 8.08(a).
(c) Any amount payable to the Argos Parties pursuant to this Section 8.08 shall be due five Business Days after the Tax refund attributable to any Indemnified Taxes has been refunded (including, without limitation, by way of set-off or deduction) to Summit or the ANAC Companies.
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ARTICLE 9
CONDITIONS TO CLOSING | | | |
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| | | (a) the Summit Stockholder Approval shall have been obtained;
(b) any applicable waiting period under the HSR Act applicable to the Transactions shall have expired or been terminated and any written agreements relating to timing with any Governmental Authority pursuant to the HSR Act applicable to the Transactions (if any) shall have expired or been terminated, in each case without the imposition of a Burdensome Condition; and
(c) No provision of any Applicable Law or Order shall prohibit, enjoin, restrain or make illegal the consummation of the Transactions or impose a Burdensome Condition (a “Legal Restraint”).
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| | | (a) Cementos, the Argos Parties and the ANAC Companies shall have performed in all material respects all of its respective covenants and obligations hereunder required to be performed by it prior to the Closing;
(b) (i) The Company Fundamental Representations and Argos Party Fundamental Representations shall be true and correct in all material respects (other than Sections 3.05 (Capitalization) and 4.05 (Ownership of Purchased Shares), which shall be true and correct in all but de minimis respects), and
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(ii) the other representations and warranties of the ANAC Companies and the Argos Parties contained in this Agreement and in any certificate or other writing delivered pursuant hereto, shall be true and correct, in the case of this clause (ii), with only such exceptions as would not, individually or in the aggregate, have, or reasonably be expected to have, a Company Material Adverse Effect, in the case of each of clauses (i) and (ii), as of the Closing as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time); provided that, for purposes of this Section 9.02(b), all materiality, Company Material Adverse Effect and similar qualifications or standards contained in such representations and warranties shall be disregarded;
(c) Since the date of this Agreement, there shall not have occurred or arisen a Company Material Adverse Effect that is continuing; and
(d) Summit shall have received a certificate duly executed by each of the Argos Parties certifying as to the satisfaction of the conditions set forth in Section 9.02(a), Section 9.02(b) and Section 9.02(c).
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| | | | | | (a) Summit shall have performed in all material respects all of its respective covenants and obligations hereunder required to be performed by it prior to the Closing.A-76 |
(b) (i) The Summit Fundamental Representations contained in this Agreement and in any certificate or other writing delivered pursuant hereto shall be true and correct in all material respects as of the Closing (other than Section 5.04 (Capitalization), which shall be true and correct in all but de minimis respects as of the Closing), (ii) the other representations and warranties of Summit contained in this Agreement and in any certificate or other writing delivered pursuant hereto, shall be true and correct, in the case of this clause (ii), with only such exceptions as would not, individually or in the aggregate, have, or reasonably be expected to have, a Summit Material Adverse Effect, in the case of each of clauses (i) and (ii), as of the Closing as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time); provided that, for purposes of this Section 9.02(b), all materiality, Summit Material Adverse Effect and similar qualifications or standards contained in such representations and warranties shall be disregarded;
| | | (c) Since the date of this Agreement, there shall not have occurred or arisen a Summit Material Adverse Effect that is continuing; and
| | | (d) Cementos shall have received a certificate signed by Summit certifying as to Summit’s satisfaction of the conditions set forth in Section 9.03(a), Section 9.03(b) and Section 9.03(c).
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ARTICLE 10
SURVIVAL; INDEMNIFICATION | | | |
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(a) Except in the case of Fraud, the representations and warranties of the Parties contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall not survive the Closing; provided that (i) the Fundamental Representations and any claims made by Summit based on Fraud shall survive the Closing indefinitely or until the latest date permitted by Applicable Law (in each case, giving effect to any waiver or extension of any statutes of limitations), and (ii) solely for purposes of Section 10.02(a)(i), (A) the representations and warranties set forth in Section 3.20 shall survive until the six-year anniversary following the Closing, and (B) all other representations and warranties set forth in Article 3 and Article 4, shall survive until the three-year anniversary following the Closing. The covenants and agreements of the Parties contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith (x) that require performance in full prior to the Closing shall survive the Closing until the later of (A) the date that is three months after Summit’s filing of its 10-K in respect of the fiscal year ending in which the Closing occurs and (B) the date that is the one year anniversary of the Closing and (y) that are required to be performed, in whole or in part, after the Closing, shall survive the Closing indefinitely or for such shorter period expressly specified therein, except that for such covenants and agreements that survive for such shorter period, breaches thereof shall survive
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indefinitely or until the latest date permitted by Applicable Law. Any claim for indemnification pursuant to Section 10.02(a)(iv) shall be made no later than the six-year anniversary of the Closing Date.
(b) Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement, or other indemnity, in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to Section 10.01(a) if requisite written notice pursuant to this Article 10 of the breach thereof or Damage giving rise to such right of indemnity shall have been given to Summit (if the indemnity is sought against Summit) or to Cementos (if the indemnity is sought against the Argos Parties), as applicable, prior to such time, or in the case of Fraud. For the avoidance of doubt, in the event notice is delivered to Cementos, such notice will be deemed delivered to each of the Argos Parties.
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Section 10.02.Indemnification. (a) Subject to the limitations set forth in this Article 10, effective at and after the Closing, Cementos and the Argos Parties hereby, jointly and severally, indemnify Summit, each ANAC Company and each of their respective officers, directors, employees, Affiliates and agents and each of their respective successors and permitted assigns (collectively, the “Summit Indemnified Parties”) against and agrees to defend and hold each of them harmless from any and all Damages, incurred or suffered by any Summit Indemnified Party (regardless of whether such Damages arise as a result of the negligence, strict liability, or other liability under any theory of law or equity of any Person and whether involving a Third-Party Claim or claims solely between the Parties) arising out of, relating to or resulting from or under: (i) any inaccuracy in or breach of any of the representations and warranties set forth in Article 3 and Article 4 as of the date hereof and as of the Closing Date (except for any such representation and warranty that addresses matters only as of a specific date, which representation and warranty shall be true and correct as of such specific date);
(ii) any inaccuracy in or breach of any of the Company Fundamental Representation or Argos Party Fundamental Representation as of the date hereof and as of the Closing Date (except for any such representation and warranty that addresses matters only as of a specific date, which representation and warranty shall be true and correct as of such specific date);
(iii) any breach of any covenant or agreement made or to be performed by Cementos, the Argos Parties or the Company pursuant to this Agreement;
(iv) any Indemnified Tax (to the extent provided in Article 8);
(v) any Liabilities to the extent relating to the business of Cementos, the Argos Parties and their Affiliates (other than the Business), other than liabilities arising pursuant to the terms of any other Transaction Document (other than this Agreement); and
(vi) Fraud.
(b) Except with respect to claims of Fraud, the maximum aggregate amount of indemnifiable Damages that may be recovered from Cementos or any Argos Party pursuant to Section 10.02(a) shall be $3,170,000,000.
(c) The indemnification provided pursuant to Section 10.02(a)(i) shall be available only to the extent a Summit Indemnified Party incurs Damages in respect of the matters described in Section 10.02(a)(i) and coverage under the R&W Insurance Policy is not available with respect thereto due to either (x) the exhaustion of the Limit of Liability provided under the R&W Insurance Policy, (y) the failure to report such Damages to the insurers under the R&W Insurance Policy prior to the Notice Date provided therein; provided that the failure to report such Damages shall not have been willful and intentional; or (z) both (x) and (y); provided that for purposes of determining the availability of coverage, the impact of the “Retention” in the R&W Insurance Policy shall be disregarded; provided further, that, except in the case of Fraud, the maximum aggregate amount of indemnifiable Damages that may be recovered from Cementos or any Argos Party pursuant to Section 10.02(a)(i) shall be the lesser of (A) the aggregate amount of “Loss” recovered by the Summit Indemnified Parties pursuant to the R&W Insurance Policy in respect of any breach of the representations and warranties contained in Section 3.10 or Section 3.20 or any Indemnified Tax, and (B) $150,000,000. Neither Cementos nor any Argos Party shall be liable in respect for indemnification pursuant to Section 10.02(a)(i) in the circumstances described in clause (y) or (z) of this
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Section 10.02(c) to the extent the then-applicable “Retention” in the R&W Insurance Policy is greater than zero (in which case the “Retention” shall be deemed to be eroded by the cumulative amount of Damages for which Cementos and the Argos Parties are relieved of liability as a result of this sentence). Capitalized terms used but not defined in this Section II shall have the meanings ascribed to such terms in the R&W Insurance Policy.
(d) Subject to the limitations set forth in this Article 10, effective at and after the Closing, Summit hereby indemnifies Cementos, each Argos Party and each of their respective officers, directors, employees, Affiliates (other than the ANAC Companies) and agents and each of their respective successors and permitted assigns (collectively, the “Argos Party Indemnified Parties”) against and agrees to defend hold each of them harmless from any and all Damages, incurred or suffered by such Argos Party Indemnified Party (regardless of whether such Damages arise as a result of the negligence, strict liability, or other liability under any theory of law or equity of any Person and whether involving a Third-Party Claim or claims solely between the Parties) arising out of, relating to or resulting from or under:
(i) any inaccuracy in or breach of any Summit Fundamental Representation as of the date hereof and as of the Closing Date (except for any such representation and warranty that addresses matters only as of a specific date, which representation and warranty shall be true and correct as of such specific date);
(ii) any breach of any covenant or agreement made or to be performed by Summit pursuant to this Agreement;
(iii) any Actions asserted by a Third Party to the extent relating to, arising out of or in connection with or resulting from the ownership or the operation of the Business following the Closing except (A) to the extent such Damages are suffered or incurred by such Persons by virtue of their direct or indirect ownership of the Business or (B) with respect to any matters for which Summit is indemnified under this Agreement, including Section 10.02(a), without giving effect to any limitations on such indemnity obligation set forth herein; and
(iv) Fraud.
(e) Except with respect to claims of Fraud, the maximum aggregate amount of indemnifiable Damages that may be recovered from Summit arising out of or resulting from the causes enumerated in Sections 10.02(d) shall not exceed $3,170,000,000.
(f) Notwithstanding anything in this Agreement that may be deemed to be contrary, for purposes of determining the amount of any Damages related to a breach of any representation or warranty contained in this Agreement and for purposes of determining whether there has been a breach of such representation or warranty, the representations and warranties contained in this Agreement shall be considered without regard to any “material,” “Company Material Adverse Effect,” “Summit Material Adverse Effect” or similar qualifications contained therein.
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(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third-Party Claim”) and, subject to the limitations set forth in this Section 10.03, shall be entitled to control and appoint lead counsel for such defense, in each case at its own expense.
(c) If the Indemnifying Party desires to assume the control of the defense of any Third-Party Claim in accordance with the provisions of this Section 10.03, the Indemnifying Party shall give written notice to the Indemnified Party within 20 days after the Indemnified Party has given written notice to the Indemnifying Party of the Third-Party Claim. If such notice is timely given, the Indemnifying Party shall be entitled to control and appoint lead counsel for such defense so long as (i) the Third-Party Claim involves only a claim for monetary damages and not any claim for an order, injunction or other equitable relief or relief for other than monetary damages against any Indemnified Party, (ii) the Indemnifying Party timely provides the Indemnified Party with (x) evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have adequate financial resources to defend against the Third-Party Claim and fulfill its indemnification obligations hereunder, and (y) a statement that, based on the facts set forth in the notice required by Section 10.03 (assuming that the facts alleged by the third party as set forth in the notice were actually true), the Indemnifying Party would have an indemnity obligation for the Damages resulting from such Third Party Claim, the Third-Party Claim does not relate to or otherwise arise in connection with any criminal or regulatory Action and (iii) the Indemnifying Party is reasonably diligently defending or prosecuting the Third-Party Claim.
(d) If the Indemnifying Party is controlling the defense of a Third-Party Claim, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement, compromise or discharge of such Third-Party Claim; provided that (i) the Indemnified Party’s consent shall not be unreasonably withheld, conditioned or delayed and (ii) the prior written consent of the Indemnified Party shall not be required if the settlement, compromise or discharge, by its express terms, (i) obligates the Indemnifying Party to pay the full amount of the Damages in connection with such Third-Party Claim and the Indemnifying Party has the financial ability to pay the full amount of such Damages, (ii) is for money damages only and does not impose injunctive or equitable relief or require an admission or finding of liability or wrongdoing and (iii) contains a full and unconditional release of all Indemnified Parties and their Affiliates from all Damages and obligations with respect to such Third-Party Claim.
(e) If the Indemnifying Party does not timely deliver the notice contemplated by Section 10.03(b), or if such notice is given on a timely basis but any of the other conditions in this Section 10.03 are unsatisfied, the Indemnified Party may defend the Third-Party Claim, but shall be required to obtain the prior written consent of the Indemnifying Party before entering into any settlement, compromise or discharge of such Third-Party Claim, provided that the Indemnifying Party’s consent shall not be unreasonably withheld, conditioned or delayed.
(f) In circumstances where the Indemnifying Party is controlling the defense of a Third-Party Claim, the Indemnified Party shall be entitled to participate in the defense of any Third-Party Claim and to employ separate counsel of its choice for such purpose, in which case the fees and expenses of such separate counsel incurred by the Indemnified Party after such time as the Indemnifying Party assumed control pursuant to Section 10.03(b) shall be borne by the Indemnified Party; provided that notwithstanding the foregoing, the Indemnifying Party shall pay the fees and expenses of such separate counsel (i) incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of the defense of the Third-Party Claim or during any period in which the Indemnifying Party ceases to be eligible to maintain control of the defense of the Third-Party Claim, in either case as provided in this Section 10.03, (ii) if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict of interest (including if any counsel chosen by the Indemnifying Party requests a conflict wavier or other waiver from the Indemnified Party with respect to such matter) or (iii) there may be one or more defenses or claims available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party and that could be adverse to the Indemnifying Party.
(g) Each of the Indemnifying Party and the Indemnified Party shall cooperate, and cause its respective Affiliates to cooperate, in the defense or prosecution of any Third-Party Claim and shall promptly furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
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(h) Notwithstanding the foregoing provisions of this Section 10.03, with respect to any Tax Proceeding, the procedures set forth in the applicable provisions of Article 8 shall apply.
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| | | | | | A-80Section 10.05. Calculation of Damages. (a) The amount of any Damages payable under this Article 10 by the Indemnifying Party shall be net of any amounts recovered by the Indemnified Party under insurance policies (including the R&W Insurance Policy), net of any costs or expenses incurred in the collection thereof, including deductibles, indemnity, reimbursement arrangements or other similar arrangements (each, an “Alternative Recovery”). Solely with respect to claims for Damages arising under Sections 10.02(a)(iii) or 10.02(a)(iv), the Summit Indemnified Party shall use its commercially reasonable efforts to seek recovery under the R&W Insurance Policy, to the extent coverage would reasonably be expected to be available thereunder (assuming all other past, current and future claims are paid out in full by the insurers thereunder), and if Summit receives insurance proceeds after having received payment from an Indemnifying Party pursuant to this Article 10 in respect thereof, then to the extent such insurance proceeds were not taken into account in determining the amount of Damages required to be paid by the applicable Indemnifying Party to Summit with respect thereto, Summit shall refund to the applicable Indemnifying Party up to the lesser of (x) the amount of such insurance proceeds so received, and (y) the amount of the indemnification payment received by the Summit Indemnified Party from the Indemnifying Party with respect thereto pursuant to this Article 10, in each case, after deducting therefrom the amount of any costs or expenses incurred in procuring such recovery, net of any Taxes actually imposed on the Summit Indemnified Party that arise from having received amounts under the R&W Insurance Policy (such Taxes being reduced by any refund, offset in Tax or other Tax Asset realized by Summit or its Affiliates from the payment of amounts under this Section 10.05); provided that, (A) the amount the Summit Indemnified Party is required to refund pursuant to this sentence shall not exceed the amount by which the indemnification payment actually paid to the Summit Indemnified Party in respect of such Damages pursuant to this Article 10 would have been reduced pursuant to this Section 10.05 had such recovery been received prior to the date of such indemnification payment, and (B) notwithstanding the foregoing, any Summit Indemnified Party may deliver a Claim against Cementos or any Argos Party at any time in order to reserve rights under this Article 10. (b) Each Argos Party hereby agrees that (i) the availability of indemnification of the Summit Indemnified Parties under this Article 10 shall be determined without regard to any right to indemnification, advancement, contribution or reimbursement that such Argos Party may have from any ANAC Company (whether such rights may arise from or pursuant to Applicable Law, Contract, the Governing Documents of any ANAC Company or otherwise), and (ii) such Argos Party shall not be entitled to any indemnification, advancement, contribution or reimbursement from Summit, any ANAC Company or any of their respective Affiliates for amounts for which Summit Indemnified Parties would be entitled to indemnification under this Article 10 (determined without regard to any thresholds, baskets, deductibles, caps, survival periods or other limitations).
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| | | (a) Without limiting any Party’s rights (w) pursuant to Section 7.21, (x) under any other Transaction Document or any other agreement entered into in connection with this Agreement, (y) with respect to claims for Fraud or (z) disputes under Section 2.06 (which disputes will be resolved in accordance with the dispute resolution provisions set forth in Section 2.06), the Parties acknowledge and agree that, from and after the Closing, the indemnification provisions in this Article 10 shall be the sole and exclusive monetary remedy of any Party with respect to any and all claims arising out of breaches of representations, warranties, covenants or agreements contained in this Agreement. For the avoidance of doubt, (b) nothing herein is intended to, nor shall it have the effect of, limiting or diminishing Summit Indemnified Parties’ right to seek or obtain recovery under the R&W Insurance Policy, and (c) as between Summit, on the one hand, and the insurers of the R&W Insurance Policy, on the other hand, none of the limitations and restrictions on indemnification set forth in this Article 10 shall affect the rights of Summit under the R&W Insurance Policy, which rights shall be governed solely thereby.
(b) This Agreement may only be enforced against, and any Action, right or remedy that may be based upon, arise out of or relate to this Agreement, any other Transaction Document or the Transactions, or the negotiation, execution or performance of this Agreement, may only be made against the Persons that are expressly identified as Parties in their capacities as parties to this Agreement, and no Party shall at any time assert against any Person (other than a Party) which is a director, officer, employee, shareholder, general or limited partner, member, manager, agent or Affiliate or Representative of another Party (each, a “Nonparty”), any claim, cause of action, right or remedy, or any Action, relating to this Agreement, any other Transaction Document, the Transactions or any document or instrument delivered in connection herewith or therewith. Each Party hereby waives and discharges any such claim, cause of action, right, remedy and Action, and releases (and agrees to execute and deliver any instrument necessary to effectuate the release of) each Nonparty therefrom. The provisions of this Section 10.08(b) are for the benefit of and shall be enforceable by each Nonparty, which is an intended third-party beneficiary of this Section 10.08(b) in connection herewith.
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ARTICLE 11
TERMINATION | | | |
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