Exhibit 4.10.1
LIMITED LIABILITY PARTNERSHIP
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NEW SUNWARD HOLDING B.V. as Borrower CEMEX, S.A. DE C.V., CEMEX MÉXICO, S.A. DE C.V. and EMPRESAS TOLTECA DE MÉXICO, S.A. DE C.V. as Guarantors BANCO BILBAO VIZCAYA ARGENTARIA, S.A. and CITIGROUP GLOBAL MARKETS, INC. as Joint Bookrunners with CITIBANK, n.a. acting as Agent
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| AMENDMENT AGREEMENT RELATING TO A US$700,000,000 TERM AND REVOLVING FACILITIES AGREEMENT DATED 27 JUNE 2005 |
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CONTENTS
Clause | Page |
1. | Definitions And Interpretation | 1 |
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2. | Amendment Of The Original Facility Agreement | 2 |
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3. | Continuity | 2 |
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4. | Miscellaneous | 2 |
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5. | Governing Law | 2 |
Schedule 1 |
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Part I | The Original Guarantors | 3 |
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Part II | The Original Lenders | 4 |
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Schedule 2 | Conditions Precedent | 5 |
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Schedule 3 | Amendments to Original Facility Agreement | 7 |
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THIS AMENDMENT AGREEMENT is dated | June 2006 and made between: |
(1) | NEW SUNWARD HOLDING B.V. (the “Borrower”); |
(2) | THE COMPANIES listed in Part I of Schedule 1 (The Original Obligors) as original guarantors (the “Original Guarantors”); |
(3) | BANCO BILBAO VIZCAYA ARGENTARIA, S.A. AND CITIGROUP GLOBAL MARKETS, INC. as joint bookrunners (whether acting individually or together the “Arranger”); |
(4) | THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Lenders) as lenders (the “Original Lenders”); and |
(5) | CITIBANK, N.A., acting through its Delaware Branch, as agent of the other Finance Parties (the “Agent”). |
IT IS AGREED as follows:
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
In this Agreement:
“Amended Agreement” means the Original Facility Agreement, as amended by this Agreement.
“Effective Date” means the date on which the Agent confirms to the Lenders and the Company that it has received each of the documents listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent.
“Original Facility Agreement” means the US$700,000,000 term and revolving facilities agreement dated 27 June 2005 between the Borrower, the Original Guarantors, the Arranger, the Original Lenders and the Agent.
1.2 | Incorporation of defined terms |
| (a) | Unless a contrary indication appears, a term defined in the Original Facility Agreement has the same meaning in this Agreement. |
| (b) | The principles of construction set out in the Original Facility Agreement shall have effect as if set out in this Agreement. |
1.3 | Clauses |
In this Agreement any reference to a “Clause” or a “Schedule” is, unless the context otherwise requires, a reference to a Clause or a Schedule to this Agreement. Clause headings are for ease of reference only.
1.4 | Third party rights |
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
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1.5 | Designation |
In accordance with the Original Facility Agreement, each of the Borrower and the Agent designates this Agreement as a Finance Document.
2. | AMENDMENT OF THE ORIGINAL FACILITY AGREEMENT |
With effect from the Effective Date, the Original Facility Agreement shall be amended as set out in Schedule 3 (Amendments to Original Facility Agreement).
3. | CONTINUITY |
3.1 | Continuing obligations |
The provisions of the Original Facility Agreement and the other Finance Documents shall, save as amended by this Agreement, continue in full force and effect.
3.2 | Affirmation |
Each of the Guarantors confirm that notwithstanding the amendments effected by this Agreement, the guarantee given by each Guarantor in the Original Facility Agreement will remain in full force and effect and will continue to constitute its legal, valid and binding obligations enforceable in accordance with its terms.
3.3 | No novation |
The execution of this Agreement shall not constitute a novation (novación) of the obligations of the Parties under the Original Facility Agreement and the other Finance Documents.
4. | MISCELLANEOUS |
4.1 | Incorporation of terms |
The provisions of clause 30 (Notices), clause 32 (Partial Invalidity), clause 33 (Remedies and waivers) and clause 37 (Enforcement) of the Original Facility Agreement shall be incorporated into this Agreement as if set out in full in this Agreement and as if references in those clauses to “this Agreement” are references to this Agreement.
4.2 | Counterparts |
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
5. | GOVERNING LAW |
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
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SCHEDULE 1
PART I
THE ORIGINAL GUARANTORS
CEMEX, S.A. de C.V.
Cemex México, S.A. de C.V.
Empresas Tolteca de México, S.A. de C.V.
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PART II
THE ORIGINAL LENDERS
Name of Original Lender | Facility A Commitment US$ | Facility B Commitment US$ |
Citibank, N.A. Nassau Bahamas Branch | 27,416,666.67 | 34,916,666.67 |
Banco Bilbao Vizcaya Argentaria, S.A. | 27,416,666.67 | 34,916,666.67 |
BNP Paribas | 31,166,666.67 | 31,166,666.67 |
Calyon Sucursal en España | 24,250,000.00 | 24,250,000.00 |
ING Bank N.V. | 48,500,000.00 | 24,250,000.00 |
JPMorgan Chase Bank | 24,250,000.00 | 24,250,000.00 |
Lloyds TSB Bank plc | 24,250,000.00 | 24,250,000.00 |
Santander Overseas Bank Inc. | 24,250,000.00 | 24,250,000.00 |
The Royal Bank of Scotland plc | 24,250,000.00 | 24,250,000.00 |
Mizuho Corporate Bank, Ltd | 15,000,000.00 | 24,250,000.00 |
Wachovia Bank, National Association | 24,250,000.00 | 24,250,000.00 |
The Bank of Tokyo-Mitsubishi UFJ, Ltd. | 15,000,000.00 | 15,000,000.00 |
Fortis Bank S.A./N.V. | 15,000,000.00 | 15,000,000.00 |
Banco de Sabadell, S.A. | 10,000,000.00 | 10,000,000.00 |
Bank of America, N.A. | 7,500,000.00 | 7,500,000.00 |
The Governor and Company of the Bank of Ireland | 7,500,000.00 | 7,500,000.00 |
TOTALS (US$) | 350,000,000.00 | 350,000,000.00 |
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SCHEDULE 2
CONDITIONS PRECEDENT
1. | Obligors |
| (a) | A copy of the current constitutional documents of each Obligor or a certificate of an authorised signatory of each relevant Obligor certifying that the constitutional documents previously delivered to the Agent pursuant to Part I of Schedule 2 of the Original Facility Agreement have not been amended and remain in full force and effect. |
| (b) | A power of attorney granting a specific individual or individuals sufficient power to sign this Agreement on behalf of each Original Obligor and in relation to the Borrower, a copy of a resolution of the board of directors of the Borrower: |
| (i) | approving the terms of, and the transactions contemplated by, this Agreement and resolving that it execute this Agreement; |
| (ii) | authorising a specified person or persons to execute this Agreement; and |
| (iii) | authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with this Agreement. |
| (c) | A specimen of the signature of each person authorised by the resolution or power of attorney referred to in paragraph (b) above. |
| (d) | A certificate of each of the Obligors (signed by an Authorised Signatory) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guarantee, security or similar limit binding on any Obligor to be exceeded. |
| (e) | A certificate of an Authorised Signatory of the relevant Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. |
2. | Legal opinions |
| (a) | A legal opinion from Clifford Chance LLP, legal advisers to the Arranger and the Agent in England, as to English law substantially in the form distributed to the Original Lenders prior to signing this Agreement satisfactory to the Lenders. |
| (b) | An opinion with respect to the laws and regulations of The Netherlands from Warendorf, substantially in the form distributed to the Original Lenders prior to signing this Agreement. |
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| (c) | An opinion with respect to the laws and regulations of Mexico from Ritch Mueller, S.C., substantially in the form distributed to the Original Lenders prior to signing this Agreement. |
| (d) | An opinion from in-house counsel of the Guarantors, substantially in the form distributed to the Original Lenders prior to signing the Agreement. |
3. | Other documents and evidence |
| (a) | A copy of this Agreement, duly executed and delivered by each Party. |
| (b) | A copy of the Notes executed and delivered by the Borrower and each Guarantor, in favour of each Lender. |
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SCHEDULE 3
AMENDMENTS TO ORIGINAL FACILITY AGREEMENT
The following amendments are made to the Original Facility Agreement:
1. | the definition of Margin shall be deleted and replaced with the following: |
““Margin” means in relation to any Loan the percentage rate per annum determined pursuant to the table set out below:
Facility | Margin % p.a. |
Facility A | 0.30 |
Facility B | 0.325 |
| (a) | in relation to any Unpaid Sum the percentage rate per annum specified above applicable to the Facility in relation to which that Unpaid Sum arises or if such Unpaid Sum does not arise in relation to a particular Facility, the rate per annum specified above applicable to the Facility to which the Agent reasonably determines the Unpaid Sum most closely relates, or if none, the highest rate per annum specified above, |
but if:
| (i) | no Default has occurred and is continuing; and |
| (ii) | for Cemex Parent and its Subsidiaries, the Consolidated Leverage Ratio in respect of the most recently completed Relevant Period is within a range set out below, |
then the Margin for each Loan under each Facility (and for any Unpaid Sum related to that Facility) will be the percentage rate per annum set out below opposite that range:
Consolidated Leverage Ratio | Margin % p.a. | |
| Facility A | Facility B |
Greater than or equal to 3.0:1 | 0.30 | 0.325 |
Less than 3.0:1 but greater than or equal to 2.5:1 | 0.25 | 0.275 |
Less than 2.5:1 but greater than or equal to 2.0:1 | 0.20 | 0.225 |
Less than 2.0:1 | 0.15 | 0.175 |
However any increase or decrease in the Margin shall take effect on the date (the “reset date”) which is the first day of the next Interest Period for that Loan following receipt by
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the Agent of the Compliance Certificate for that Relevant Period pursuant to Clause 20.2 (Compliance Certificate) and in the case of a then current Interest Period will apply to the whole of such Interest Period unless any payments of interest have already been made in which case any adjustments to the Margin will apply only from the date of such payment.” and
2. | the definition of Termination Date shall be deleted and replaced with the following: |
““Termination Date” means:
| (a) | in relation to Facility A, the day which is 24 Months after the Effective Date; |
| (b) | in relation to Facility B, the day which is 48 Months after the Effective Date, |
or, in each case, if such day would not be a Business Day, the first succeeding Business Day, unless such day would fall into the next month, in which case the immediately preceding Business Day.”
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SIGNATURES
NEW SUNWARD HOLDING B.V.
as Borrower
By: | /s/ Agustín Blanco | ||
Name: | Agustín Blanco |
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Title: | Attorney-in-Fact |
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CEMEX, S.A. DE C.V.
as Original Guarantor
By: | /s/ Rodrigo Treviño |
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Name: | Rodrigo Treviño |
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Title: | Chief Financial Officer | ||
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CEMEX MÉXICO, S.A. DE C.V.
as Original Guarantor
By: | /s/ Victor Manuel Naranjo Bandala | ||
Name: | Victor Manuel Naranjo Bandala |
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Title: | Treasury Director |
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EMPRESAS TOLTECA DE MÉXICO, S.A. DE C.V.
as Original Guarantor
By: | /s/ Victor Manuel Naranjo Bandala | ||
Name: | Victor Manuel Naranjo Bandala |
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Title: | Treasury Director |
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CITIBANK, N.A.
as Agent
By: | /s/ Carlos Corona | ||
Name: | Carlos Corona |
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Title: | Vice President |
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CITIGROUP GLOBAL MARKETS, INC.
as Arranger
By: | /s/ Carlos Corona | ||
Name: | Carlos Corona |
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Title: | Director |
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BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
as Arranger
By: | /s/ Alvaro Bánez |
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Name: | Alvaro Bánez |
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Title: | Authorized Signatory | ||
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BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
as Original Lender
By: | /s/ Natalia Gonzalez |
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Name: | Natalia Gonzalez |
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Title: | Authorized Signatory | ||
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BNP PARIBAS
as Original Lender
By: | /s/ Genoveva Ramon Borja | ||
Name: | Genoveva Ramon Borja |
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Title: | Director |
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CITIBANK, N.A. NASSAU BAHAMAS BRANCH
as Original Lender
By: | /s/ L. Munroe |
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Name: | L. Munroe |
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Title: | Attorney-in-Fact | ||
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CALYON SUCURSAL EN ESPAÑA
as Original Lender
By: | /s/ Javier Alvarez-Rendueles | ||
Name: | Javier Alvarez-Rendueles |
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Title: | Executive Director |
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ING BANK N.V.
(acting through its Curacao Branch)
as Original Lender
By: | /s/ J. van Steenderen | ||
Name: | J. van Steenderen |
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Title: | General Manager |
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By: | /s/ A. Felipa-Ventura |
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Name: | A. Felipa-Ventura |
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Title: | Manager Credit Administration | ||
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JPMORGAN CHASE BANK
as Original Lender
By: | /s/ Linda Meyer | ||
Name: | Linda Meyer |
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Title: | Vice President |
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LLOYDS TSB BANK PLC
as Original Lender
By:
Name:
Title:
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MIZUHO CORPORATE BANK, LTD
as Original Lender
By: | /s/ Takeo Kada |
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Name: | Takeo Kada |
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Title: | Deputy General Manager | ||
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SANTANDER OVERSEAS BANK INC.
as Original Lender
By: | /s/ José Luis Muñoz Cintrón | ||
Name: | José Luis Muñoz Cintrón |
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Title: | Vice President |
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THE ROYAL BANK OF SCOTLAND PLC
as Original Lender
By: | /s/ Antonio Casteleiro | ||
Name: | Antonio Casteleiro |
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Title: | Senior Director |
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By: | /s/ Guillermo Poggio | ||
Name: | Guillermo Poggio |
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Title: | Associate Director |
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WACHOVIA BANK, NATIONAL ASSOCIATION
as Original Lender
By: | /s/ Kathleen Reedy | |
Name: | Kathleen Reedy |
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Title: | Managing Director |
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
as Original Lender
By: | /s/ Pamela D. Price |
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Name: | Pamela D. Price |
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Title: | Vice President & Manager | ||
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FORTIS BANK S.A./N.V.
as Original Lender
By: | /s/ Hans De Langhe | ||
Name: | Hans De Langhe |
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Title: | Manager |
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BANCO DE SABADELL, S.A.
as Original Lender
By: | /s/ Francisco Javier González Moñux | |
Name: | Francisco Javier González Moñux |
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Title:
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BANK OF AMERICA, N.A.
as Original Lender
By: | /s/ Emilio Arriaga | ||
Name: | Emilio Arriaga |
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Title: | Attorney-in-Fact |
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THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
as Original Lender
By: | /s/ Trevor Manning | ||
Name: | Trevor Manning |
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Title: | Associate |
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