Exhibit 4.21
EUR 250,000,000
(Y) 19,308,000,000
FACILITIES AGREEMENT
dated 30 March 2004
for
CEMEX ESPANA, S.A.
as Borrower
CEMEX CARACAS INVESTMENTS B.V.
CEMEX CARACAS II INVESTMENTS B.V.
CEMEX EGYPTIAN INVESTMENTS B.V.
CEMEX MANILA INVESTMENTS B.V.
SANDWORTH PLAZA HOLDING B.V.
as Guarantors
arranged by
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
SOCIETE GENERALE, S.A.
with
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
acting as Agent
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TERM AND REVOLVING FACILITIES AGREEMENT
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CONTENTS
Clause Page
1. Definitions and Interpretation..................................................................4
2. The Facilities.................................................................................19
3. Purpose........................................................................................19
4. Conditions of Utilisation......................................................................19
5. Utilisation....................................................................................22
6. Optional Currencies............................................................................23
7. Repayment......................................................................................26
8. Prepayment and cancellation....................................................................26
9. Interest.......................................................................................29
10. Interest Periods...............................................................................30
11. Changes to the calculation of interest.........................................................31
12. Fees...........................................................................................32
13. Tax Gross Up and Indemnities..................................................................33
14. Increased costs................................................................................35
15. Other indemnities..............................................................................36
16. Mitigation by the Lenders......................................................................37
17. Costs and expenses.............................................................................38
18. Guarantee and indemnity........................................................................39
19. Representations................................................................................42
20. Information undertakings.......................................................................45
21. Financial Covenants............................................................................47
22. General undertakings...........................................................................50
23. Events of Default..............................................................................57
24. Changes to the Lenders.........................................................................61
25. Changes to the Obligors........................................................................64
26. Role of the Agent and the Arranger.............................................................66
27. Conduct of business by the Finance Parties.....................................................71
28. Sharing among the Finance Parties..............................................................71
29. Payment mechanics..............................................................................73
30. Set-off........................................................................................75
31. Notices........................................................................................75
32. Calculations and certificates..................................................................77
33. Partial invalidity.............................................................................77
34. Remedies and waivers...........................................................................77
35. Amendments and waivers.........................................................................77
36. Counterparts...................................................................................78
37. Governing law..................................................................................79
38. Enforcement....................................................................................79
SCHEDULE 1 The Original Parties.......................................................................80
Part I The Obligors...................................................................................80
Part II The Original Lenders..........................................................................81
SCHEDULE 2 Conditions Precedent.......................................................................83
Part I Conditions Precedent to initial Utilisation....................................................83
Part II Conditions Precedent required to be delivered by an Additional Guarantor......................85
SCHEDULE 3 Requests...................................................................................87
Part I Utilisation Request............................................................................87
Part II Selection Notice..............................................................................88
SCHEDULE 4 Mandatory Cost Formulae....................................................................89
SCHEDULE 5 Form of Transfer Certificate...............................................................91
SCHEDULE 6 Form of Compliance Certificate.............................................................93
SCHEDULE 7 Existing Security..........................................................................95
SCHEDULE 8 Existing Notarisations.....................................................................96
SCHEDULE 9 LMA Form of confidentiality undertaking....................................................97
SCHEDULE 10 Timetables...............................................................................102
SCHEDULE 11 Form of Accession Letter.................................................................104
SCHEDULE 12 Material Subsidiaries....................................................................105
SCHEDULE 13 Defining the JPY Fix Rate................................................................106
THIS AGREEMENT is dated 30 March 2004 and made between:
(1) CEMEX ESPANA, S.A. (the "Borrower");
(2) CEMEX CARACAS INVESTMENTS B.V., CEMEX CARACAS II INVESTMENTS B.V., CEMEX
EGYPTIAN INVESTMENTS B.V., CEMEX MANILA INVESTMENTS B.V. and SANDWORTH
PLAZA HOLDING B.V. (the " Original Guarantors");
(3) BANCO BILBAO VIZCAYA ARGENTARIA, S.A. and SOCIETE GENERALE, S.A. as
mandated lead arrangers (whether acting individually or together the
"Arranger");
(4) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1
(The Original Parties) as lenders (the "Original Lenders"); and
(5) BANCO BILBAO VIZCAYA ARGENTARIA, S.A. as agent of the other Finance
Parties (the "Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. Definitions and Interpretation
1.1 Definitions
In this Agreement:
"Accession Letter" means a document substantially in the form set out
in Schedule 11 (Form of Accession Letter).
"Additional Cost Rate" has the meaning given to it in Schedule 4
(Mandatory Cost Formulae).
"Additional Guarantor" means a company which becomes an Additional
Guarantor in accordance with Clause 25 (Changes to the Obligors).
"Affiliate" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"Asia Fund" means Cemex Asia Holdings Ltd. ("CAH") or any other
vehicles used by the Borrower or any other member of the Group to
invest, or finance investments already made, in companies involved in
or assets dedicated to the cement, concrete or aggregates business in
Asia in both cases, such company or vehicle, as applicable, with
committed third parties with minority interests other than members of
the Group or CEMEX, S.A. de C.V. and its Subsidiaries and with the
Borrower maintaining control of its management.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"Authorised Signatory" means, in relation to any Obligor, any person
who is duly authorised and in respect of whom the Agent has received a
certificate signed by a director or another Authorised Signatory of
such Obligor setting out the name and signature of such person and
confirming such person's authority to act.
"Availability Period" means:
(a) in relation to Facility A and Facility C, the period from and
including the date of this Agreement to and including the day
falling one Month after the date of this Agreement; and
(b) in relation to Facility B, the period from and including the
date of this Agreement to and including the day falling one
week (or, if the Borrower has selected three Interest Periods
of less than one Month, one Month) before the Termination
Date.
"Available Commitment" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) the Base Currency Amount (in respect of Facility A and
Facility B) or the yen amount (in respect of Facility C) of
its participation in any outstanding Loans under that
Facility; and
(b) in relation to any proposed Utilisation, the Base Currency
Amount (in respect of Facility A and Facility B) or the yen
amount (in respect of Facility C) of its participation in any
Loans that are due to be made under that Facility on or before
the proposed Utilisation Date,
other than, in relation to any proposed Utilisation under Facility B
only, that Lender's participation in any Facility B Loans that are
repaid or prepaid on or before the proposed Utilisation Date.
"Available Facility" means, in relation to a Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of that
Facility.
"Base Currency" means euro.
"Base Currency Amount" means, in relation to a Facility A Loan or a
Facility B Loan, the amount specified in the Utilisation Request for
that Loan (or, if the amount requested is not denominated in the Base
Currency, that amount converted into the Base Currency at the Spot Rate
of Exchange on the date which is three Business Days before the
Utilisation Date) adjusted to reflect any repayment (other than, in
relation to Facility A, a repayment arising from a change of currency)
or prepayment of the Loan.
"Break Costs" means:
(a) in the case of Facility A and Facility B, the amount (if any)
by which:
(i) the interest which a Lender should have received for
the period from the date of receipt of all or any
part of its participation in a Loan or Unpaid Sum to
the last day of the current Interest Period in
respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last
day of that Interest Period;
exceeds:
(ii) the amount which that Lender would be able to obtain
by placing an amount equal to the principal amount or
Unpaid Sum received by it on deposit with a leading
bank in the Relevant Interbank Market for a period
starting on the Business Day following receipt or
recovery and ending on the last day of the current
Interest Period; and
(b) in the case of Facility C, the amount of any costs incurred by
a Lender (whether as a result of terminating any Hedging
Agreements or otherwise) in respect of any prepayment under
this Agreement and justified in writing to the Borrower.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in Madrid and:
(a) (in relation to any date for payment or lending or purchase of
a currency other than euro) the principal financial centre of
the country of that currency;
(b) (in relation to any date for determination of an interest rate
in relation to a currency other than euro) the principal
financial centre of that currency and London;
(c) (in relation to any date for determination of a rate of
exchange in relation to a currency other than euro) a TARGET
Day; or
(d) (in relation to any date for payment or lending or purchase
of, or determination of an interest rate or a rate of exchange
in relation to, euro) a TARGET Day.
"Capital Lease" means any lease that is capitalised on the balance
sheet prepared in accordance with Spanish GAAP.
"Commitment" means a Facility A Commitment and/or Facility B Commitment
and/or Facility C Commitment.
"Compliance Certificate" means a certificate substantially in the form
set out in Schedule 6 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 9
(LMA Form of Confidentiality Undertaking) or in any other form agreed
between the Borrower and the Agent.
"Default" means an Event of Default or any event or circumstance
specified in Clause 23 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"Domestic Lender" means any person described in paragraph (c) of
article 57 of Royal Decree 537/1997, of 14 April (Real Decreto 537/1997
de 14 de abril) as amended by Royal Decree 2717/1998, of 18 December
(Real Decreto 2717/1998, de 18 de diciembre) or in the second paragraph
of article 12.1 of Royal Decree 326/1999, of 26 February (Real Decreto
326/1999, de 26 de febrero).
"Environmental Claim" means any claim, proceeding or investigation by
any person in respect of any Environmental Law.
"Environmental Law" means any applicable law or regulation in any
jurisdiction in which any member of the Group conducts business which
relates to the pollution or protection of the environment or harm to or
the protection of human health or the health of animals or plants.
"Environmental Permits" means any permit, licence, consent, approval
and other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of
the business of any member of the Group conducted on or from the
properties owned or used by the relevant member of the Group.
"ERISA" means the United States Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of
that Loan) the rate calculated by way of interpolation of the
rates for the immediately preceding and the immediately
following periods for which a Screen Rate is available; or
(c) (if no Screen Rate is available for the immediately preceding
and the immediately following periods) the arithmetic mean
(rounded upwards to four decimal places) as supplied to the
Agent at its request quoted by the Reference Banks to leading
banks in the European interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in euro for a period comparable to the Interest Period of the
relevant Loan.
"Event of Default" means any event or circumstance specified as such in
Clause 23 (Events of Default).
"Facility" means Facility A or Facility B or Facility C.
"Facility A" means the multicurrency term loan facility made available
under this Agreement as described in Clause 2 (The Facilities).
"Facility A Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility A
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility A Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility A Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility A Loan" means the loan made or to be made under Facility A or
the principal amount outstanding for the time being of that loan.
"Facility A Repayment Date" means the day falling 60 Months after the
date of this Agreement.
"Facility B" means the revolving loan facility made available under
this Agreement as described in Clause 2 (The Facilities).
"Facility B Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility B
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility B Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility B Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility B Loan" means a loan made or to be made under Facility B or
the principal amount outstanding for the time being of that loan.
"Facility C" means the yen term loan facility made available under this
Agreement as described in Clause 2 (The Facilities).
"Facility C Commitment" means:
(a) in relation to an Original Lender, the amount in yen set
opposite its name under the heading "Facility C Commitment" in
Part II of Schedule 1 (The Original Parties) and the amount of
any other Facility C Commitment transferred to it under this
Agreement; and
(b) in relation to any other Lender, the amount in yen of any
Facility C Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility C Loan" means the loan made or to be made under Facility C or
the principal amount outstanding for the time being of that loan.
"Facility C Repayment Date" means the day falling 60 Months after the
date of this Agreement.
"Facility Office" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"Fee Letter" means any letter or letters dated on or about the date of
this Agreement between the Arranger and the Borrower (or the Agent and
the Borrower) setting out any of the fees referred to in Clause 12
(Fees).
"Finance Document" means this Agreement, any Accession Letter, any Fee
Letter and any other document designated as such by the Agent and the
Borrower.
"Finance Party" means the Agent, the Arranger or a Lender.
"Financial Indebtedness" means, without duplication, any indebtedness
for or in respect of:
(a) moneys borrowed (including, but not limited to, any amount
raised by acceptance under any acceptance credit facility and
receivables sold or discounted on a recourse basis (it being
understood that Permitted Securitisations shall be deemed not
to be on a recourse basis));
(b) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(c) the amount of any liability in respect of any lease or hire
purchase contract that would, in accordance with Spanish GAAP,
be treated as a Capital Lease;
(d) the deferred purchase price of assets or the deferred payment
of services, except trade accounts payable in the ordinary
course of business;
(e) obligations of a person under repurchase agreements for the
stock issued by such person or another person;
(f) obligations of a person with respect to product invoices
incurred in connection with exporting financing;
(g) all Financial Indebtedness of others secured by Security on
any asset of a person, regardless of whether such Financial
Indebtedness is assumed by such person in an amount equal to
the lower of (i) the net book value of such asset and (ii) the
amount secured thereby; and
(h) guarantees of Financial Indebtedness of other persons.
"GAAP" means, in relation to an Obligor, the generally accepted
accounting principles applying to it (i) in the country of its
incorporation; or (ii) in a jurisdiction agreed to by the Agent.
"Group" means the Borrower and its Subsidiaries for the time being.
"Guarantors" means the Original Guarantors and any Additional Guarantor
other than any such Original Guarantor or Additional Guarantor which
has ceased to be a Guarantor pursuant to Clause 25.3 (Resignation of a
Guarantor) and has not subsequently become an Additional Guarantor
pursuant to Clause 25.2 (Additional Guarantors) and "Guarantor" means
any of them.
"Hedging Agreements" means any hedging agreements entered into by any
Lender (whether internally with one of its own departments or
externally with a third party) in order to hedge its interest rate
exposure in relation to the calculation of the yen rate in accordance
with Schedule 13 (Defining the JPY Fix Rate) for Facility C.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Information Memorandum" means the document in the form approved by the
Borrower concerning the Borrower and the Group which, at the Borrower's
request and on its behalf, was prepared in relation to this transaction
and distributed by the Arranger to selected financial institutions
before the date of this Agreement.
"Interest Period" means, in relation to a Loan, each period determined
in accordance with Clause 10 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 9.3
(Default interest).
"International Accounting Standards" means the accounting standards
approved by the International Accounting Standards Board from time to
time.
"Investment Grade" means a Rating assigned by S&P and Moody's of at
least BBB- and at least Baa3 respectively.
"Lender" means:
(a) any Original Lender; and
(b) any bank, financial institution, securitisation trust or fund
or other entity which has become a Party in accordance with
Clause 24 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the rate calculated by way of
interpolation of the rates for the immediately preceding and
the immediately following periods for which a Screen Rate is
available; or
(c) (if no Screen Rate is available for the immediately preceding
and the immediately following periods) the arithmetic mean
(rounded upwards to four decimal places) as supplied to the
Agent at its request quoted by the Reference Banks to leading
banks in the London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to
the Interest Period for that Loan.
"LMA" means the Loan Market Association.
"Loan" means the Facility A Loan or a Facility B Loan or the Facility C
Loan.
"Majority Lenders" means:
(a) if there are no Loans then outstanding, a Lender or Lenders
whose Commitments aggregate more than 51% of the Total
Commitments (or, if the Total Commitments have been reduced to
zero, aggregated more than 51% of the Total Commitments
immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose undrawn
Commitments and participations in the Loans then outstanding
aggregate more than 51% of all the undrawn Commitments and
Loans then outstanding.
For the purposes of aggregating Lenders' Commitments and participations
in Loans pursuant to this definition, any Facility A or Facility B
Commitments and any participations in Facility A or Facility B Loans
shall refer to their Base Currency Amount and any Facility C
Commitments and any participations in Facility C Loans shall be
converted into euro at the rate of exchange of 128.72 yens to EUR1.
"Mandatory Cost" means the percentage rate per annum calculated in
accordance with Schedule 4 (Mandatory Cost Formulae).
"Margin" means, subject to the proviso below, in respect of the
Facility A Loan and the Facility C Loan, 0.575 per cent. per annum,
and, in respect of a Facility B Loan, 0.350 per cent. per annum, but
if:
(a) no Default has occurred and is continuing; and
(b) the ratio of Net Borrowings to Adjusted EBITDA in respect of
the most recently completed Relevant Period (ending on or
after receipt by the Agent, pursuant to paragraph (a) (i) or
(b) of Clause 20.1 (Financial Statements), of the Borrower's
consolidated financial statements) is within the range set out
in Column 1 below,
then the Margin shall be the percentage rate per annum set out opposite
such range in Column 2 (in respect of the Facility A Loan or the
Facility C Loan) or Column 3 (in respect of a Facility B Loan).
Column 1 Column 2 Column 3
Net Borrowings to Facility A/C Margin (%) Facility B Margin (%)
Adjusted EBITDA
Equal to or greater than 2.6 0.650 0.425
Less than 1.6 0.500 0.275
and any change in the Margin shall take effect three Business Days
after receipt by 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 adjustment to the Margin will apply only from
the date of such payment.
For the purpose of determining the Margin:
"Relevant Period", "Net Borrowings" and "Adjusted EBITDA" shall be
determined in accordance with Clause 21.1 (Financial Definitions).
"Material Adverse Effect" means a material adverse effect on:
(a) the business, condition (financial or otherwise) or operations
of the Group taken as a whole;
(b) the rights or remedies of any Finance Party under the Finance
Documents; or
(c) the ability of any Obligor to perform its obligations under
the Finance Documents.
"Material Subsidiary" means those companies set out in Schedule 12
(Material Subsidiaries) and any other Subsidiary of the Borrower:
(a) which becomes a Subsidiary of the Borrower after the date
hereof or acquires substantial assets or businesses after the
date hereof; and
(b) which:
(i) has total assets representing 5 per cent. or more of
the total consolidated assets of the Group; and/or
(ii) has revenues representing 5 per cent. or more of the
consolidated turnover of the Group,
in each case calculated on a consolidated basis and any Holding Company
of any such Subsidiary (save unless such company is a Guarantor
hereunder).
Compliance with the conditions set out in paragraphs (a) and (b) shall
be determined by reference to the most recent Compliance Certificate
supplied by the Borrower and/or the latest audited financial statements
of that Subsidiary (consolidated in the case of a Subsidiary which
itself has Subsidiaries) and the latest audited consolidated financial
statements of the Group, but if a Subsidiary has been acquired since
the date as at which the latest audited consolidated financial
statements of the Group were prepared, the financial statements shall
be adjusted in order to take into account the acquisition of that
Subsidiary (that adjustment being certified by the Group's auditors as
representing an accurate reflection of each of the respective revised
total assets and turnover of the Group).
A report by the auditors of the Borrower that a Subsidiary is a
Material Subsidiary shall, in the absence of manifest error, be
conclusive and binding on all Parties.
"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) if the numerically corresponding day is not a Business Day,
that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one,
or if there is not, on the immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"Moody's" means Moody's Investors Service Inc..
"Obligors" means the Borrower and the Guarantors and "Obligor" means
any of them.
"Optional Currency" means a currency (other than the Base Currency)
which complies with the conditions set out in Clause 4.3 (Conditions
relating to Optional Currencies).
"Original Financial Statements" means:
(a) in relation to the Borrower, its audited unconsolidated and
consolidated financial statements for its financial year ended
31 December 2002 and its unaudited unconsolidated and
consolidated financial statements for its financial year ended
31 December 2003; and
(b) in relation to each Guarantor, its respective audited
unconsolidated (and, to the extent available, its audited
consolidated) financial statements for its financial year
ended 31 December 2002 and unaudited unconsolidated (and, to
the extent available, its unaudited consolidated) financial
statements for its financial year ended 31 December 2003.
"Outlook" means the rating outlook of the Borrower with regard to the
Borrower's economic and/or fundamental business condition, as assigned
by S&P or Moody's.
"Participating Member State" means any member state of the European
Union that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Union relating to Economic
and Monetary Union.
"Party" means a party to this Agreement.
"Permitted Securitisations" means a sale, transfer or other
securitisation of receivables and related assets by the Borrower or its
Subsidiaries, including a sale at a discount, provided that (i) such
receivables have been transferred, directly or indirectly, by the
originator thereof to a Special Purpose Vehicle in a manner that
satisfies the requirements for an absolute conveyance, and not merely a
pledge, under the laws and regulations of the jurisdiction in which
such originator is organised, (ii) such Special Purpose Vehicle issues
notes, certificates or other obligations which are to be repaid from
collections and other proceeds of such receivables and (iii) except for
customary representations, warranties, covenants and indemnities, such
sale, transfer or other securitisation is carried out on a non-recourse
basis.
"Qualifying Lender" means:
(a) any legal person or entity (including, for the avoidance of
doubt, any securitisation trust or fund) habitually resident
for taxation purposes in a Qualifying State which is not
acting through a territory considered as a tax haven pursuant
to Spanish laws and regulations (currently set out in Royal
Decree 1080/1991 of 5 July (Real Decreto 1080/1991 de 5 de
julio)) or through a permanent establishment in Spain; or
(b) any legal person or entity (including, for the avoidance of
doubt, any securitisation trust or fund) resident in a country
which, as a result of any applicable double taxation treaty,
would not require any payments made by the Borrower to such
financial institution hereunder to be subject to any deduction
or withholding in Spain; or
(c) any Domestic Lender.
"Qualifying State" means a member state of the European Union (other
than Spain).
"Quotation Day" means, in relation to any period for which an
interest rate is to be determined:
(a) (if the currency is euro) two TARGET Days before the first day
of that period; or
(b) (for any other currency) two Business Days before the first
day of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day,
the Quotation Day will be the last of those days).
"Rating" means at any time the solicited long term credit rating or the
senior implied rating of the Borrower or an issue of securities of or
guaranteed by the Borrower, where the rating is based primarily on the
senior unsecured credit risk of the Borrower and/or, in the case of the
senior implied rating, on the characteristics of any particular issue,
assigned by S&P or Moody's.
"Reference Banks" means Barclays Bank PLC, Credit Agricole Indosuez and
Deutsche Bank AG or such other banks as may be appointed by the Agent
in consultation with the Borrower.
"Relevant Interbank Market" means in relation to euro, the European
interbank market, and, in relation to any other currency, the London
interbank market.
"Repeating Representations" means each of the representations set out
in Clauses 19.1 (Status) to 19.6 (Governing law and enforcement),
Clause 19.9 (No default), paragraphs (a) and (b) of Clause 19.11
(Financial statements), Clause 19.13 (No proceedings pending or
threatened), Clause 19.14 (No winding up) and Clause 19.16 (Material
Adverse Change).
"Rollover Loan" means one or more Facility B Loans:
(a) made or to be made on the same day that a maturing Facility B
Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Facility B Loan;
(c) in the same currency as the maturing Facility B Loan (unless
it arose as a result of the operation of Clause 6.2
(Unavailability of a currency)); and
(d) made or to be made for the purpose of refinancing a maturing
Facility B Loan.
"S&P" means Standard and Poors Corporation.
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers' Association
Interest Settlement Rate for the relevant currency and period;
and
(b) in relation to EURIBOR, the percentage rate per annum
determined by the Banking Federation of the European Union for
the relevant period,
displayed on the appropriate page of the Reuters screen (being
currently EURIBOR01 for EURIBOR and LIBOR01 for LIBOR). If the agreed
page is replaced or service ceases to be available, the Agent may
specify another page or service displaying the appropriate rate after
consultation with the Borrower and the Lenders.
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement
or arrangement having a similar effect.
"Selection Notice" means a notice substantially in the form set out in
Part II of Schedule 3 (Selection Notice) given in accordance with
Clause 10 (Interest Periods) or Clause 6.1 (Selection of Currency) in
relation to Facility A.
"Spanish Public Document" means any obligation in an Escritura Publica
or documento intervenido.
"Special Purpose Vehicle" means a securitisation trust or fund, limited
liability company, partnership or other special purpose person
established to implement a securitisation of receivables, provided that
the business of such person is limited to acquiring, servicing and
funding receivables and related assets and activities incidental
thereto.
"Specified Time" means a time determined in accordance with Schedule 10
(Timetables).
"Spot Rate of Exchange" means the spot rate of exchange displayed on
the appropriate page of the Reuters screen (being currently ECB37) of
the Reuters screen for the purchase of the relevant currency with the
Base Currency at or about 2:20 p.m. on a particular day.
"Stake" means a number of shares in any Group member held by another
Group member the disposal of which would cause the first Group member
to cease to be a Subsidiary of the second Group member.
"Subsidiary" means in relation to any company or corporation, a company
or corporation:
(a) which is controlled, directly or indirectly, by the first
mentioned company or corporation;
(b) more than half the issued share capital of which is
beneficially owned, directly or indirectly by the first
mentioned company or corporation; or
(c) which is a Subsidiary of another Subsidiary of the first
mentioned company or corporation,
and for this purpose, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the settlement
of payments in euro.
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"Termination Date" means:
(a) in relation to Facility A, the day falling 60 Months after the
date of this Agreement;
(b) in relation to Facility B, the day falling 364 days after the
date of this Agreement or, in case of an extension, from the
Original Facility B Termination Date (as defined in Clause 4.5
(Extension Request)); and (c) in relation to Facility C, the
day falling 60 Months after the date of this Agreement.
"Total Commitments" means the aggregate of the Total Facility A
Commitments, the Total Facility B Commitments and the Total Facility C
Commitments. For the purposes of calculating such aggregate, the Total
Facility C Commitments shall be converted into euro at the rate of
128.72 yens to EUR1.
"Total Facility A Commitments" means the aggregate of the Facility A
Commitments, being EUR 150,000,000 at the date of this Agreement.
"Total Facility B Commitments" means the aggregate of the Facility B
Commitments, being EUR 100,000,000 at the date of this Agreement.
"Total Facility C Commitments" means the aggregate of the Facility C
Commitments, being (Y) 19,308,000,000 at the date of this Agreement.
"Transfer Certificate" means a certificate substantially in the form
set out in Schedule 5 (Form of Transfer Certificate) or any other form
agreed between the Agent and the Borrower.
"Transfer Date" means, in relation to a transfer, the date specified as
such in the relevant Transfer Certificate:
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"Utilisation" means a utilisation of a Facility.
"Utilisation Date" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out
in Part I of Schedule 3 (Utilisation Request).
"VAT" means value added tax as provided for in the Value Added Tax Act
1994 and any other tax of a similar nature.
"2001 Facility" means the EUR 800,000,000 revolving credit facility
dated 29 October 2001 entered into between Compania Valenciana de
Cementos Portland, S.A. as borrower, certain of its subsidiaries as
original guarantors and certain financial institutions as arrangers,
underwriters, agents and original lenders.
1.2 Construction
(a) Unless a contrary indication appears any reference in this
Agreement to:
(i) the "Agent", the "Arranger", any "Finance Party", any
"Lender", any "Obligor" or any "Party" shall be
construed so as to include its successors in title,
permitted assigns and permitted transferees;
(ii) "assets" includes present and future properties,
revenues and rights of every description;
(iii) a "Finance Document" or any other agreement or
instrument is a reference to that Finance Document or
other agreement or instrument as amended or novated;
(iv) "indebtedness" includes any obligation (whether
incurred as principal or as surety) for the payment
or repayment of money, whether present or future,
actual or contingent;
(v) a "person" includes any person, firm, company,
corporation, government, state or agency of a state
or any association, trust or partnership (whether or
not having separate legal personality) of two or more
of the foregoing;
(vi) a "regulation" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law) of any governmental,
intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other
authority or organisation;
(vii) the "winding-up", "dissolution", "administration" or
"reorganisation" of a company or corporation shall be
construed so as to include any equivalent or
analogous proceedings (such as, in Spain, suspension
de pagos, quiebra, concurso or any other situacion
concursal) under the laws and regulations of the
jurisdiction in which such company or corporation is
incorporated or any jurisdiction in which such
company or corporation carries on business including
the seeking of liquidation, winding-up,
reorganisation, bankruptcy, dissolution,
administration, arrangement, adjustment, protection
or relief of debtors;
(viii) a provision of law is a reference to that provision
as amended or re-enacted; and
(ix) a time of day is a reference to Madrid time.
(b) Section, Clause and Schedule headings are for ease of
reference only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) A Default (other than an Event of Default) is "continuing" if
it has not been remedied or waived and an Event of Default is
"continuing" if it has not been waived.
1.3 Currency Symbols and Definitions "$" and "dollars" denote lawful
currency of the United States of America, "EUR" and "euro" means the
single currency unit of the Participating Member States and "(Y)" and
"yen" denote lawful currency of Japan.
1.4 Third party rights A person who is not a Party 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.
SECTION 2
THE FACILITIES
2. The Facilities
2.1 The Facilities
Subject to the terms of this Agreement, the Lenders make available to
the Borrower:
(a) a multicurrency term loan facility in an aggregate amount
equal to the Total Facility A Commitments;
(b) a multicurrency revolving loan facility in an aggregate amount
equal to the Total Facility B Commitments; and
(c) a yen term loan facility in an aggregate amount equal to the
Total Facility C Commitments.
2.2 Finance Parties' rights and obligations
(a) The obligations of each Finance Party under the Finance
Documents are several. Failure by a Finance Party to perform
its obligations under the Finance Documents does not affect
the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations
of any other Finance Party under the Finance Documents.
(b) Except as otherwise stated in the Finance Documents, the
rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Finance Party
from an Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. Purpose
3.1 Purpose
The Borrower shall apply all amounts borrowed by it under each Facility first
towards repayment of the 2001 Facility and thereafter towards its general
corporate purposes and short term liquidity requirements.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
4. Conditions of Utilisation
4.1 Initial conditions precedent
The Borrower may not deliver a Utilisation Request unless the Agent has received
all of the documents and other evidence listed in Part I of Schedule 2
(Conditions Precedent to initial Utilisation). The Agent shall notify the
Borrower and the Lenders promptly upon receiving such documents.
4.2 Further conditions precedent
(a) The Lenders will only be obliged to comply with Clause 5.4
(Lenders' participation) if on the date of the Utilisation
Request and on the proposed Utilisation Date:
(i) in the case of a Rollover Loan, no Default is
continuing or would result from the proposed Loan
and, in the case of any other Loan, no Default is
continuing or would result from the proposed Loan;
and
(ii) the Repeating Representations to be made by each
Obligor are true in all material respects.
(b) The Lenders will only be obliged to comply with Clause 6.3
(Change of currency) if, on the first day of an Interest
Period, no Default is continuing or would result from the
change of currency and the Repeating Representations to be
made by each Obligor are true in all material respects.
(c) If only one but not both of the Facility A Loan and the
Facility C Loan have, as of the last day of the Availability
Period, been made, the Borrower shall on such day prepay the
entire amount of the Facility A Loan or, as the case may be,
the Facility C Loan.
4.3 Conditions relating to Optional Currencies
A currency will constitute an Optional Currency in relation to a Loan
if:
(a) it is readily available in the amount required and freely
convertible into the Base Currency in the Relevant Interbank
Market on the Quotation Day and the Utilisation Date for that
Loan; and
(b) it is dollars.
4.4 Maximum number of Loans
(a) The Borrower may not deliver a Utilisation Request if as a
result of the proposed Utilisation:
(i) two or more Facility A Loans would be outstanding; or
(ii) six or more Facility B Loans would be outstanding; or
(iii) two or more Facility C Loans would be outstanding.
(b) Any Loan made by a single Lender under Clause 6.2
(Unavailability of a currency) shall not be taken into account
in this Clause 4.4.
4.5 Extension Request
The Borrower shall be entitled to request an extension of Facility B,
for an additional period of 364 days, by giving notice to the Agent
(the "Extension Request") not more than 60 nor less than 30 days before
the Termination Date (in this Clause 4.5 the "Original Facility B
Termination Date"). Such notice shall be made in writing and shall be
unconditional and binding on the Borrower except as set out in Clause
4.9 (Revocation of Extension).
4.6 Notification of Extension Request
The Agent shall forward a copy of the Extension Request to the Lenders
as soon as practicable after receipt of it.
4.7 Lenders' Response to Extension Request
If a Lender, in its individual and sole discretion, agrees to the
extension requested by the Borrower, it shall give notice to the Agent
(a "Notice of Extension") (revocable only in the case mentioned in
Clause 4.9 (Revocation of Extension)) no later than 20 days prior to
the Original Facility B Termination Date. If a Lender does not give
such Notice of Extension by such date, then that Lender shall be deemed
to have refused that extension.
4.8 Lender's Discretion
Nothing shall oblige a Lender to agree to an Extension Request.
4.9 Revocation of Extension
If Lenders whose Facility B Commitments amount in aggregate to 50 per
cent. or less of the Total Facility B Commitments give Notices of
Extension, then the Extension Request will be deemed to have been
refused and the Agent shall notify the Borrower and Lenders
accordingly.
4.10 Extension Date
(a) The Original Facility B Termination Date shall be extended if
and when Lenders whose Facility B Commitments amount in
aggregate to more than 50 per cent. of the Total Facility B
Commitments have agreed to it by giving a Notice of Extension
and, provided that the Borrower has not withdrawn its
Extension Request on or before the date falling 10 days prior
to the Original Facility B Termination Date, the Original
Facility B Termination Date shall then be extended to the day
which is 364 days from (and including) the Original Facility B
Termination Date.
(b) If less than all the Lenders give a Notice of Extension, then
the Facility B Commitments shall be reduced to zero and the
share of any outstanding Loans of the Lenders which have not
agreed to the extension shall be fully repaid on the Original
Facility B Termination Date (and those Lenders shall cease
from that date to be Lenders in respect of Facility B under
this Agreement) and the amount of Facility B shall be reduced
accordingly.
4.11 Notification of Extension
The Agent shall promptly inform the Borrower and the Lenders which will
continue to remain party to this Agreement of the size of Facility B if
reduced.
SECTION 3
UTILISATION
5. Utilisation
5.1 Delivery of a Utilisation Request
The Borrower may utilise a Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day
within the Availability Period applicable to that
Facility;
(iii) the currency and amount of the Utilisation comply
with Clause 5.3 (Currency and amount); and
(iv) the proposed Interest Period complies with Clause 10
(Interest Periods).
(b) Only one Loan may be requested in each Utilisation Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be:
(i) in relation to the Facility A Loan or a Facility B
Loan, the Base Currency or the Optional Currency; and
(ii) in relation to the Facility C Loan, yen.
(b) In relation to the Facility A Loan or a Facility B Loan, the
amount of the proposed Loan must be:
(i) if the currency selected is the Base Currency:
(A) in the case of the Facility A Loan, EUR
150,000,000; and
(B) in the case of a Facility B Loan, a minimum
of EUR 20,000,000 and, if more, an integral
multiple of EUR 5,000,000 or, if less, the
Available Facility; or
(ii) if the currency selected is dollars:
(A) in the case of the Facility A Loan, the
equivalent in dollars at the Spot Rate of
Exchange at the Specified Time of EUR
150,000,000; and
(B) in the case of a Facility B Loan, a minimum
of the equivalent in dollars at the Spot
Rate of Exchange at the Specified Time of
EUR 20,000,000 and, if more, an integral
multiple of $5,000,000 or, if less, the
Available Facility; and
(iii) in any event such that its Base Currency Amount is
less than or equal to the Available Facility.
For the purposes of paragraph (b) (ii) above and in
respect of Facility B only, the Availability Facility
shall be calculated by deducting from the Total
Facility B Commitments the aggregate amount of all
outstanding Facility B Loans converted (to the extent
that any such Loans are denominated in Optional
Currencies) into the Base Currency at the Spot Rate
of Exchange at the Specified Time relating to the
delivery of the Utilisation Request.
(c) In relation to the Facility C Loan, the amount of the proposed
Loan must be(Y)19,308,000,000.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met,
each Lender shall make its participation in each Loan
available by the Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be
equal to the proportion borne by its Available Commitment to
the Available Facility immediately prior to making the Loan.
(c) The Agent shall determine the Base Currency Amount of each
Loan which is to be made in an Optional Currency and shall
notify each Lender of the amount, currency and the Base
Currency Amount of each Loan and the amount of its
participation in that Loan, in each case by the Specified
Time.
6. Optional Currencies
6.1 Selection of currency
(a) The Borrower shall select the currency of a Loan:
(i) (in the case of an initial Utilisation) in a
Utilisation Request; and
(ii) (afterwards in relation to a Facility A Loan made to
it) in a Selection Notice.
(b) If the Borrower fails to issue a Selection Notice in relation
to the Facility A Loan, the Loan will remain denominated for
its next Interest Period in the same currency in which it is
then outstanding.
(c) If the Borrower issues a Selection Notice requesting a change
of currency and the first day of the requested Interest Period
is not a Business Day for the new currency, the Agent shall
promptly notify the Borrower and the Lenders and the Loan will
remain in the existing currency (with Interest Periods running
from one Business Day until the next Business Day) until the
next day which is a Business Day for both currencies, on which
day the requested Interest Period will begin.
6.2 Unavailability of a currency
If before the Specified Time on any Quotation Day:
(a) a Lender notifies the Agent that the Optional Currency
requested is not readily available to it in the amount
required, and provides in writing an objectively justified
reason therefor; or
(b) a Lender notifies the Agent that compliance with its
obligation to participate in a Loan in the proposed Optional
Currency would contravene a law or regulation applicable to
it,
the Agent will give notice to the Borrower to that effect by the
Specified Time on that day. In this event, any Lender that gives notice
pursuant to this Clause 6.2 will be required to participate in the Loan
in the Base Currency (in an amount equal to that Lender's proportion of
the Base Currency Amount, or in respect of a Rollover Loan, an amount
equal to that Lender's proportion of the Base Currency Amount of the
Rollover Loan that is due to be made) and its participation will be
treated as a separate Loan denominated in the Base Currency during that
Interest Period.
6.3 Change of currency
If a Facility A Loan is to be denominated in different currencies
during two successive Interest Periods:
(a) if the currency for the second Interest Period is an Optional
Currency, the amount of the Loan in that Optional Currency
will be calculated by the Agent as the amount of that Optional
Currency equal to the Base Currency Amount of the Loan at the
Spot Rate of Exchange at the Specified Time;
(b) if the currency for the second Interest Period is the Base
Currency, the amount of the Loan will be equal to the Base
Currency Amount;
(c) the Borrower shall repay the Loan on the last day of the first
Interest Period in the currency in which it was denominated
for that Interest Period; and
(d) (subject to Clause 4.2 (Further conditions precedent)) the
Lenders shall re-advance the Loan in the new currency in
accordance with Clause 6.5 (Agent's calculations) on the last
day of the first Interest Period.
6.4 Same Optional Currency during successive Interest Periods - Facility A
(a) If a Facility A Loan is to be denominated in the same Optional
Currency during two successive Interest Periods, the Agent
shall calculate the amount of the Facility A Loan in the
Optional Currency for the second of those Interest Periods (by
calculating the amount of Optional Currency equal to the Base
Currency Amount of that Facility A Loan at the Spot Rate of
Exchange at the Specified Time) and (subject to paragraph (b)
below):
(i) if the amount calculated is less than the existing
amount of that Facility A Loan in the Optional
Currency during the first Interest Period, promptly
notify the Borrower and the Borrower shall pay, on
the last day of the first Interest Period, an amount
equal to the difference; or
(ii) if the amount calculated is more than the existing
amount of that Facility A Loan in the Optional
Currency during the first Interest Period, promptly
notify each Lender and, if no Default is continuing,
each Lender shall, on the last day of the first
Interest Period, pay its participation in an amount
equal to the difference.
(b) If the calculation made by the Agent pursuant to paragraph (a) above
shows that the amount of the Facility A Loan in the Optional Currency
for the second of those Interest Periods converted into the Base
Currency at the Spot Rate of Exchange at the Specified Time has
increased or decreased by less than 5 per cent. compared to its Base
Currency Amount (for the avoidance of doubt, taking into account any
payments made pursuant to paragraph (a) above) or that the Spot Rate of
Exchange at the Specified Time has increased or decreased by less than
5 per cent. compared to the Spot Rate of Exchange used either for the
initial calculation of the amount of the Facility A Loan in the
Optional Currency or, if a payment has been made in accordance with
paragraph (a) above, the Spot Rate of Exchange so used at such time, no
notification shall be made by the Agent and no payment shall be
required under paragraph (a) above.
6.5 Agent's calculations
(a) All calculations made by the Agent pursuant to this Clause 6 will take
into account any repayment or prepayment of Facility A Loans to be made
on the last day of the first Interest Period.
(b) Each Lender's participation in a Loan will, subject to paragraph (a)
above, be determined in accordance with paragraph (b) of Clause 5.4
(Lenders' participation).
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. Repayment
7.1 Repayment of Facility A Loan
The Borrower shall repay the Facility A Loan in full on the Termination
Date.
7.2 Repayment of Facility B Loans
The Borrower shall repay each Facility B Loan on the last day of its
Interest Period. If such Loan is to be refinanced with a Rollover Loan,
the amount of each Loan required to be repaid shall be set off against
the amount of the applicable Rollover Loan.
7.3 Repayment of Facility C Loan
The Borrower shall repay the Facility C Loan in full on the Termination
Date.
8. Prepayment and cancellation
8.1 Illegality
If, at any time, it is or will become unlawful in any applicable
jurisdiction for a Lender to perform any of its obligations as
contemplated by this Agreement or to fund or maintain its participation
in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming
aware of that event and in any event at a time which permits
the Borrower to repay that Lender's participation on the date
such repayment is required to be made);
(b) upon the Agent notifying the Borrower, the Commitment of that
Lender will be immediately cancelled; and
(c) the Borrower shall repay that Lender's participation in the
Loans made to the Borrower on the last day of the Interest
Period for each Loan occurring after the Agent has notified
the Borrower or, if earlier, the date specified by the Lender
in the notice delivered to the Agent.
8.2 Voluntary cancellation
The Borrower may, if it gives the Agent not less than five Business
Days' prior written notice, cancel the whole or any part (in the case
of Facility A and Facility B, being a minimum amount of EUR 15,000,000
and, if more, an integral multiple of EUR 5,000,000) of an Available
Facility. Any cancellation under this Clause 8.2 shall reduce the
Commitments of the Lenders rateably under that Facility. Cancellations
shall be made proportionally between Facility A and Facility C.
8.3 Voluntary prepayment of Facility A Loan
(a) The Borrower may, if it gives the Agent not less than five
Business Days' prior written notice, prepay the whole or any
part of the Facility A Loan (but, if in part, being an amount
that reduces the Base Currency Amount of the Facility A Loan
by a minimum amount of EUR 15,000,000 and, if more, an
integral multiple of EUR 5,000,000).
(b) The Facility A Loan may only be prepaid after the last day of
the Availability Period (or, if earlier, the day on which the
applicable Available Facility is zero).
8.4 Voluntary Prepayment of Facility B Loans
The Borrower may, if it gives the Agent not less than five Business
Days' prior written notice, prepay the whole or any part of a
Facility B Loan (but if in part, being an amount that reduces the
Base Currency Amount of the Facility B Loan by a minimum amount of
EUR 15,000,000 and, if more, an integral multiple of EUR 5,000,000).
8.5 Voluntary Prepayment of Facility C Loan
(a) The Borrower may, if it gives the Agent not less than five
Business Days' prior written notice, prepay the whole or any
part of the Facility C Loan.
(b) The Facility C Loan may only be prepaid after the last day of
the Availability Period (or, if earlier, the day on which the
applicable Available Facility is zero).
8.6 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender by an Obligor is
required to be increased under paragraph (c) of
Clause 13.2 (Tax gross-up); or
(ii) any Lender claims indemnification from the Borrower
under Clause 13.3 (Tax indemnity) or Clause 14.1
(Increased costs),
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent
notice of cancellation of the Commitment of that Lender and
its intention to procure the repayment of that Lender's
participation in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to
zero.
(c) On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (a) above (or, if
earlier, the date specified by the Borrower in that notice),
the Borrower shall repay that Lender's participation in that
Loan provided that such repayment does not result in a Default
under this Agreement.
8.7 Restrictions
(a) Any notice of cancellation or prepayment given by any Party
under this Clause 8 shall be irrevocable and, unless a
contrary indication appears in this Agreement, shall specify
the date or dates upon which the relevant cancellation or
prepayment is to be made and the amount of that cancellation
or prepayment.
(b) Any prepayment under this Agreement shall be made together
with accrued interest on the amount prepaid and, subject to
any Break Costs, without premium or penalty.
(c) The Borrower may not reborrow any part of Facility A or
Facility C which is prepaid.
(d) Unless a contrary indication appears in this Agreement, any
part of Facility B which is prepaid may be reborrowed in
accordance with the terms of this Agreement.
(e) The Borrower shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except at
the times and in the manner expressly provided for in this
Agreement.
(f) No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated.
(g) If the Agent receives a notice under this Clause 8 it shall
promptly forward a copy of that notice to either the Borrower
or the affected Lender, as appropriate.
(h) Any profit received by a Lender as a result of terminating any
Hedging Agreements pursuant to a prepayment under this
Agreement shall be for the account of the Borrower. The exact
amount of such profit shall be calculated by the relevant
Lender and shall be justified in writing to the Borrower.
(i) Prepayments shall be made proportionally between Facility A
and Facility C.
SECTION 5
COSTS OF UTILISATION
9. Interest
9.1 Calculation of interest
(a) The rate of interest on the Facility A Loan and each Facility
B Loan for each Interest Period is the percentage rate per
annum which is the aggregate of the applicable:
(i) Margin;
(ii) LIBOR or, in relation to any Loan in euro, EURIBOR;
and
(iii) Mandatory Cost, if any.
(b) The rate of interest on the Facility C Loan for its Interest
Period is the percentage rate per annum which is the aggregate
of:
(i) The applicable Margin;
(ii) The rate determined in accordance with Schedule 13
(Defining the JPY Fix Rate); and
(iii) Mandatory Cost, if any.
9.2 Payment of interest
On the last day of each Interest Period relating to the Facility A Loan
and each Facility B Loan, the Borrower shall pay accrued interest on
the Loan to which that Interest Period relates (and, if the Interest
Period is longer than six Months, on the dates falling at six Monthly
intervals after the first day of the Interest Period). The Borrower
shall pay accrued interest on the Facility C Loan on the dates falling
at six Monthly intervals after the first day of its Interest Period
with the exception of the last interest payment which shall take place
on the Termination Date.
9.3 Default interest
(a) If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual
payment (both before and after judgment) at a rate which,
subject to paragraph (b) below, is two per cent higher than
the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Loan in
the currency of the overdue amount for successive Interest
Periods, each of a duration of one Month. Any interest
accruing under this Clause 9.3 shall be immediately payable by
the Obligor on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which
became due on a day which was not the last day of an Interest
Period relating to that Loan:
(i) the first Interest Period for that overdue amount
shall have a duration equal to the unexpired portion
of the current Interest Period relating to that Loan;
and
(ii) the rate of interest applying to the overdue amount
during that first Interest Period shall be two per
cent. higher than the rate which would have applied
if the overdue amount had not become due.
(c) Default interest (if unpaid) arising on an overdue amount will
be compounded with the overdue amount at the end of each
Interest Period applicable to that overdue amount but will
remain immediately due and payable.
9.4 Notification of rates of interest
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
10. Interest Periods
10.1 Selection of Interest Periods
(a) The Borrower may select an Interest Period for a Loan other
than the Facility C Loan in the Utilisation Request for that
Loan or (if the Loan has already been borrowed) in a Selection
Notice.
(b) Each Selection Notice for the Facility A Loan is irrevocable
and must be delivered to the Agent by the Borrower not later
than the Specified Time.
(c) If the Borrower fails to deliver a Selection Notice to the
Agent in accordance with paragraph (b) above, the relevant
Interest Period will be one Month.
(d) Subject to this Clause 10, the Borrower may select an Interest
Period of:
(i) in the case of the Facility A Loan, one, two, three
or six Months; and
(ii) in the case of a Facility B Loan, one or two weeks or
one, two, three or six Months provided that periods
of less than one Month may only be selected three
times or less
or any other period agreed between the Borrower and the Agent
(acting on the instructions of all the Lenders).
(e) An Interest Period for a Loan shall not extend beyond the
Termination Date applicable to its Facility.
(f) Each Interest Period for the Facility A Loan shall start on
the Utilisation Date or (if already made) on the last day of
its preceding Interest Period.
(g) A Facility B Loan has one Interest Period only.
(h) The Facility C Loan has one Interest Period starting on the
Utilisation Date and ending on the Termination Date.
10.2 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
11. Changes to the calculation of interest
11.1 Absence of quotations
Subject to Clause 11.2 (Market disruption), if LIBOR or, if applicable,
EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable LIBOR or EURIBOR shall be determined on
the basis of the quotations of the remaining Reference Banks.
11.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for
any Interest Period, then the rate of interest on each
Lender's share of that Loan for the Interest Period shall be
the rate per annum which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon
as practicable and in any event before interest is
due to be paid in respect of that Interest Period, to
be that which expresses as a percentage rate per
annum the cost to that Lender of funding its
participation in that Loan from whatever source it
may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that
Lender's participation in the Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the
relevant Interest Period the Screen Rate is not
available and none or only one of the Reference Banks
supplies a rate to the Agent to determine LIBOR or,
if applicable, EURIBOR for the relevant currency and
Interest Period; or
(ii) before close of business in London on the Quotation
Day for the relevant Interest Period, the Agent
receives notifications from a Lender or Lenders
(whose participations in a Loan exceed 50 per cent.
of that Loan) that the cost to it of obtaining
matching deposits in the Relevant Interbank Market
would be in excess of LIBOR or, if applicable,
EURIBOR.
11.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the
Borrower so requires, the Agent and the Borrower shall enter
into negotiations (for a period of not more than thirty days)
with a view to agreeing a substitute basis for determining the
rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the
Borrower, be binding on all Parties.
11.4 Break Costs
(a) The Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by the Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the
amount of its Break Costs for any Interest Period in which
they accrue.
12. Fees
12.1 Arrangement fee
The Borrower shall pay to the Arranger an arrangement fee in the amount
and at the times agreed in a Fee Letter.
12.2 Facility fee
The Borrower shall pay to the Agent (for the account of each Original
Lender) a fee in euro computed at the rate of 0.05 per cent. of each
Original Lender's Facility B Commitment, payable within 15 Business
Days of the date of this Agreement.
12.3 Agency fee
The Borrower shall pay to the Agent (for its own account) an agency fee
in the amount and at the times agreed in a Fee Letter.
12.4 Extension fee
If Facility B is extended, the Borrower shall pay to the Agent (for the
account of each Lender extending under Facility B) a fee in euro
computed at the rate of 0.075 per cent. of each Lender's Facility B
Commitment on the date of such extension, payable within 15 Business
Days of such extension.
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13. Tax Gross Up and Indemnities
13.1 Definitions
(a) In this Agreement:
"Protected Party" means a Finance Party which is or will be
subject to any liability, or required to make any payment, for
or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be
received or receivable) under a Finance Document.
"Tax Deduction" means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.
"Tax Payment" means either the increase in a payment made by
an Obligor to a Finance Party under Clause 13.2 (Tax gross-up)
or a payment under Clause 13.3 (Tax indemnity).
(b) Unless a contrary indication appears, in this Clause 13 a
reference to "determines" or "determined" means a
determination made in the absolute discretion of the person
making the determination.
13.2 Tax gross-up
(a) Each Obligor shall make all payments to be made by it without
any Tax Deduction, unless a Tax Deduction is required by law
or regulation.
(b) The Borrower or a Lender shall promptly upon becoming aware
that an Obligor must make a Tax Deduction (or that there is
any change in the rate or the basis of a Tax Deduction) notify
the Agent accordingly. If the Agent receives such notification
from a Lender it shall notify the Borrower and that Obligor.
(c) If a Tax Deduction is required by law or regulation to be made
by an Obligor, the amount of the payment due from that Obligor
shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would
have been due if no Tax Deduction had been required.
(d) If an Obligor is required to make a Tax Deduction, that
Obligor shall make that Tax Deduction and any payment required
in connection with that Tax Deduction within the time allowed
and in the minimum amount required by law or regulation.
(e) Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Obligor making that Tax Deduction shall deliver to the Agent
for the Finance Party entitled to the payment an original
receipt (or certified copy thereof) or if unavailable such
other evidence as is reasonably satisfactory to that Finance
Party that the Tax Deduction has been made or (as applicable)
any appropriate payment paid to the relevant taxing authority.
13.3 Tax indemnity
(a) The Borrower shall (within three Business Days of demand by
the Agent) pay to a Protected Party an amount equal to the
amount of any Tax assessed on that Protected Party (together
with any interest, costs or expenses payable, directly or
indirectly, or incurred in connection therewith) in relation
to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance
Document.
(b) Paragraph (a) of this Clause 13.3 above shall not apply with
respect to any Tax assessed on a Finance Party:
(i) under the laws and regulations of the jurisdiction in
which that Finance Party is incorporated or, if
different, the jurisdiction (or jurisdictions) in
which that Finance Party is treated as resident for
tax purposes; or
(ii) under the laws and regulations of the jurisdiction in
which that Finance Party's Facility Office is located
in respect of amounts received or receivable in that
jurisdiction,
if that Tax is imposed on or calculated by reference to the
net income (but not on any sum deemed to be received or
receivable in respect of any payment made under Clause 13.2
(Tax gross-up)) of that Finance Party.
(c) A Protected Party making, or intending to make a claim
pursuant to Paragraph (a) of this Clause 13.3 shall promptly
notify the Agent of the event which will give, or has given,
rise to the claim, following which the Agent shall notify the
Borrower.
(d) A Protected Party shall, on receiving a payment from an
Obligor under this Clause 13.3, notify the Agent.
13.4 Tax Certificates
(a) Without prejudice to the other provisions of this Clause 13,
in relation to any exemption from or application of a rate
lower than that of general application pursuant to any
legislation in Spain or any double taxation treaty, or
pursuant to any other cause relating to residence status, any
Lender which is not a Domestic Lender shall supply the
Borrower, through the Agent, prior to the interest payment
date with a certificate of residence issued by the pertinent
fiscal administration, in the case of a Qualifying Lender
which is not a Domestic Lender, accrediting such Qualifying
Lender as resident for tax purposes in a Qualifying State or,
as the case may be, accrediting such Lender as resident for
tax purposes in a State which has signed and ratified a double
taxation treaty with Spain.
(b) As such certificates referred to in Paragraph (a) of this
Clause 13.4 are, at the date hereof, only valid for a period
of one year, each such Lender will be required to so supply a
further such certificate upon expiry of the previous
certificate in relation to any further payment of interest.
13.5 Stamp taxes
The Borrower shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document.
13.6 Value added tax
(a) All consideration expressed to be payable under a Finance
Document by any Party to a Finance Party shall be deemed to be
exclusive of any VAT. If VAT is chargeable on any supply made
by any Finance Party to any Party in connection with a Finance
Document, that Party shall pay to the Finance Party (in
addition to and at the same time as paying the consideration)
an amount equal to the amount of the VAT.
(b) Where a Finance Document requires any Party to reimburse a
Finance Party for any costs or expenses, that Party shall also
at the same time pay and indemnify the Finance Party against
all VAT incurred by the Finance Party in respect of the costs
or expenses to the extent that the Finance Party reasonably
determines that it is not entitled to credit or repayment of
the VAT.
14. Increased costs
14.1 Increased costs
(a) Subject to Clause 14.3 (Exceptions) the Borrower shall, within
three Business Days of a demand by the Agent, pay for the
account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a
result of (i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or
regulation (including any change in the Mandatory Cost from
that existing at the date of this Agreement) or (ii)
compliance with any law or regulation made after the date of
this Agreement.
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility
or on a Finance Party's (or its Affiliate's) overall
capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any
Finance Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that
Finance Party having entered into its Commitment or funding or
performing its obligations under any Finance Document.
14.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause
14.1 (Increased costs) shall notify the Agent of the event
giving rise to the claim, following which the Agent shall
promptly notify the Borrower.
(b) Each Finance Party shall, as soon as practicable after a
demand by the Agent, provide a certificate confirming the
amount of its Increased Costs.
14.3 Exceptions
(a) Clause 14.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law or
regulation to be made by an Obligor;
(ii) compensated for by Clause 13.3 (Tax indemnity) (or
would have been compensated for under Clause 13.3
(Tax indemnity) but was not so compensated solely
because any of the exclusions in paragraph (b) of
Clause 13.3 (Tax indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost;
or
(iv) attributable to the wilful breach by the relevant
Finance Party or its Affiliates of any law or
regulation.
(b) In this Clause 14.3, a reference to a "Tax Deduction" has the
same meaning given to the term in Clause 13.1 (Definitions).
15. Other indemnities
15.1 Currency indemnity
(a) If any sum due from an Obligor under the Finance Documents (a
"Sum"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the
"First Currency") in which that Sum is payable into another
currency (the "Second Currency") for the purpose of:
(i) making or filing a claim or proof against that
Obligor;
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration
proceedings,
that Obligor shall as an independent obligation, within three
Business Days of demand, indemnify each Finance Party to whom
that Sum is due against any cost, loss or liability arising
out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert
that Sum from the First Currency into the Second Currency and
(B) the rate or rates of exchange available to that person at
the time of its receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
15.2 Other indemnities
Each Obligor shall, within five Business Days of demand, indemnify each
Finance Party against any cost, loss or liability not otherwise
compensated under the provisions of this Agreement and excluding any
lost profits, consequential or indirect damages (other than interest or
default interest) incurred by that Finance Party as a result of its
Commitment or the making of any Loan under the Finance Documents as a
result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any
cost, loss or liability arising as a result of Clause 28
(Sharing among the Finance Parties);
(c) funding, or making arrangements to fund, its participation in
a Loan requested by a Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default
or negligence by that Finance Party alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment given by the Borrower.
15.3 Indemnity to the Agent
The Borrower shall promptly indemnify the Agent against any cost, loss
or liability directly related to this Agreement incurred by the Agent
(acting reasonably and otherwise than by reason of the Agent's gross
negligence or wilful misconduct) as a result of:
(a) investigating any event which it reasonably believes (acting
prudently and, if possible, following consultation with the
Borrower) is a Default; or
(b) acting or relying on any notice, request or instruction which
it reasonably believes to be genuine, correct and
appropriately authorised.
16. Mitigation by the Lenders
16.1 Mitigation
(a) Each Finance Party shall, in consultation with the Borrower,
take all reasonable steps to mitigate any circumstances which
arise after the date of this Agreement and which would result
in any amount becoming payable under or pursuant to, or
cancelled pursuant to, any of Clause 8.1 (Illegality), Clause
13 (Tax gross-up and indemnities), Clause 14 (Increased costs)
or paragraph 3 of Schedule 4 (Mandatory Cost Formulae)
including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate
or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations
of any Obligor under the Finance Documents.
16.2 Limitation of liability
(a) The Borrower shall indemnify each Finance Party for all costs
and expenses reasonably incurred by that Finance Party as a
result of steps taken by it under Clause 16.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause
16.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
17. Costs and expenses
17.1 Transaction expenses
The Borrower shall promptly on demand pay the Agent and the Arranger
the amount of all costs and expenses (including legal fees and fees
relating to publicity which has been approved by the Borrower)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
17.2 Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 29.9 (Change of currency), the
Borrower shall, within three Business Days of demand, reimburse the
Agent, the Arranger and each Lender for the amount of all costs and
expenses (including legal fees, but in this case, only the legal fees
of one law firm in each relevant jurisdiction acting on behalf of all
the Lenders) reasonably incurred by such parties in responding to,
evaluating, negotiating or complying with that request or requirement.
17.3 Enforcement costs
The Borrower shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the enforcement
of, or the preservation of any rights under, any Finance Document.
SECTION 7
GUARANTEE
18. Guarantee and indemnity
18.1 Guarantee and indemnity
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by the
Borrower of all the Borrower's obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever the Borrower
does not pay any amount when due under or in connection with
any Finance Document, it shall immediately on demand pay that
amount as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against
any cost, loss or liability suffered by that Finance Party if
any obligation guaranteed by it is or becomes unenforceable,
invalid or illegal. The amount of the cost, loss or liability
shall be equal to the amount which that Finance Party would
otherwise have been entitled to recover.
18.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the
ultimate balance of sums payable by the Borrower under the Finance
Documents, regardless of any intermediate payment or discharge in whole
or in part.
18.3 Reinstatement
If any payment by the Borrower or any discharge given by a Finance
Party (whether in respect of the obligations of the Borrower or any
security for those obligations or otherwise) is avoided or reduced as a
result of insolvency or any similar event:
(a) the liability of the Borrower shall continue as if the
payment, discharge, avoidance or reduction had not occurred;
and
(b) each Finance Party shall be entitled to recover the value or
amount of that security or payment from the Borrower, as if
the payment, discharge, avoidance or reduction had not
occurred.
18.4 Waiver of defences
The obligations of each Guarantor under this Clause 18 will not be
affected by an act, omission, matter or thing which, but for this
Clause, would reduce, release or prejudice any of its obligations under
this Clause 18 (without limitation and whether or not known to it or
any Finance Party) including:
(a) any time, waiver or consent granted to, or composition with,
the Borrower or other person;
(b) the release of the Borrower or any other person under the
terms of any composition or arrangement with any creditor of
any member of the Group;
(c) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, the
Borrower or other person or any non-presentation or
non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full
value of any security;
(d) any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of the Borrower or any other person;
(e) any amendment (however fundamental) or replacement of a
Finance Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security; or
(g) any insolvency or similar proceedings.
18.5 Immediate recourse
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from
any person before claiming from a Guarantor under this Clause 18. This
waiver applies irrespective of any law or regulation or any provision
of a Finance Document to the contrary.
18.6 Appropriations
Until all amounts which may be or become payable by the Borrower under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf)
may:
(a) refrain from applying or enforcing any other moneys, security
or rights held or received by that Finance Party (or any
trustee or agent on its behalf) in respect of those amounts,
or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys
received from a Guarantor or on account of such Guarantor's
liability under this Clause 18.
18.7 Deferral of Guarantors' rights
Until all amounts which may be or become payable by the Borrower under
or in connection with the Finance Documents have been irrevocably paid
in full and unless the Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
(a) to be indemnified by the Borrower;
(b) to claim any contribution from any other guarantor of the
Borrower's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or
security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party.
18.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by
any other guarantee or security now or subsequently held by any Finance
Party.
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19. Representations
Each Obligor makes the representations and warranties set out in this
Clause 19 to each Finance Party on the date of this Agreement.
19.1 Status
(a) It is a corporation, duly organised and validly existing under
the laws and regulations of its jurisdiction of incorporation.
(b) It has the power to own its assets and carry on its business
as it is being conducted.
19.2 Binding obligations
The obligations expressed to be assumed by it in each Finance Document
are, subject to any reservations which are specifically referred to in
any legal opinion delivered pursuant to Clause 4 (Conditions of
Utilisation), legal, valid, binding and enforceable obligations.
19.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not conflict
with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any agreement or instrument binding upon it or any of its
assets.
19.4 Power and authority
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery
of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
19.5 Validity and admissibility in evidence
All Authorisations required or desirable:
(a) to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which
it is a party; and
(b) to make the Finance Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation,
(c) have been obtained or effected and are in full force and
effect.
19.6 Governing law and enforcement
(a) The choice of English law as the governing law of the Finance
Documents will be recognised and enforced in its jurisdiction
of incorporation.
(b) Any judgment obtained in England in relation to a Finance
Document will be recognised and enforced in its jurisdiction
of incorporation, subject to any reservations which are
specifically referred to in any legal opinion delivered
pursuant to Clause 4 (Conditions of Utilisation).
19.7 Deduction of Tax
It is not required under the laws and regulations of its jurisdiction
of incorporation to make any deduction for or on account of Tax from
any payment it may make under any Finance Document to any Qualifying
Lender.
19.8 No filing or stamp taxes
Under the laws and regulations of its jurisdiction of incorporation it
is not necessary that the Finance Documents be filed, recorded or
enrolled with any court or other authority in that jurisdiction or that
any stamp, registration or similar tax be paid on or in relation to the
Finance Documents or the transactions contemplated by the Finance
Documents.
19.9 No default
(a) No Default or Event of Default is continuing or might
reasonably be expected to result from the making of any
Utilisation.
(b) No other event or circumstance is outstanding which
constitutes a default under any other agreement or instrument
which is binding on it or any of its Subsidiaries or to which
its (or its Subsidiaries') assets are subject which might have
a Material Adverse Effect.
19.10 No misleading information
(a) Any factual information provided by the Borrower for the
purposes of the Information Memorandum was true and accurate
in all material respects as at the date it was provided or as
at the date (if any) at which it is stated.
(b) The financial projections contained in the Information
Memorandum have been prepared in good faith on the basis of
recent historical information and on the basis of the
assumptions stated therein, which assumptions were fair in the
light of conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, the
Borrower's best estimate of its future performance.
(c) Nothing has occurred or been omitted from the Information
Memorandum and no information has been given or withheld that
results in the information contained in the Information
Memorandum being untrue or misleading in any material respect.
(d) All written information (other than the Information
Memorandum) supplied by any member of the Group is true,
complete and accurate in all material respects as at the date
it was given and is not misleading in any respect.
19.11 Financial statements
(a) Its Original Financial Statements were prepared in accordance
with GAAP consistently applied and are complete and accurate
in all material respects.
(b) Its Original Financial Statements fairly represent its
financial condition and operations during the relevant
financial year.
(c) For the purposes of any repetition of the representation
contained in paragraphs (a) and (b) of this Clause 19.11
(pursuant to Clause 19.17 (Repetition)) the representations
will be made in respect of the latest consolidated financial
statements of each Obligor instead of the Original Financial
Statements.
19.12 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law or
regulation applying to companies generally.
19.13 No proceedings pending or threatened
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which would be reasonably likely to
have a Material Adverse Effect or purports to affect the legality,
validity or enforceability of any of the obligations under the Finance
Documents have been started or threatened against any Obligor or any
Material Subsidiary.
19.14 No winding-up
No legal proceedings or other procedures or steps have been taken or
are threatening in relation to the winding-up, dissolution,
administration or reorganisation of any Obligor or Material Subsidiary
(other than a solvent liquidation or reorganisation of any Material
Subsidiary which is not an Obligor).
19.15 Security
It is in compliance with its obligations under Clause 22.6 (Negative
pledge).
19.16 Material Adverse Change
There has been no material adverse change in the Borrower's business,
condition (financial or otherwise), operations, performance or assets
taken as a whole (or the business, consolidated condition (financial or
otherwise) operations, performance or the assets generally of the Group
taken as a whole) since its Original Financial Statements.
19.17 Environmental compliance
Each member of the Group has performed and observed in all material
respects all Environmental Law, Environmental Permits and all other
material covenants, conditions, restrictions or agreements directly or
indirectly concerned with any contamination, pollution or waste or the
release or discharge of any toxic or hazardous substance in connection
with any real property which is or was at any time owned, leased or
occupied by any member of the Group or on which any member of the Group
has conducted any activity where failure to do so might reasonably be
expected to have a Material Adverse Effect.
19.18 Environmental Claims
No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened against any member of the Group
where that claim would be reasonably likely, if determined against that
member of the Group to have a Material Adverse Effect.
19.19 No Immunity
In any proceedings taken in its jurisdiction of incorporation in
relation to this Agreement, it will not be entitled to claim for itself
or any of its assets immunity from suit, execution, attachment or other
legal process.
19.20 Private and commercial acts
Its execution of the Finance Documents constitutes, and its exercise of
its rights and performance of its obligations hereunder will
constitute, private and commercial acts done and performed for private
and commercial purposes.
19.21 Repetition
The Repeating Representations are deemed to be made by each Obligor (by
reference to the facts and circumstances then existing) on the date of
each Utilisation Request and the first day of each Interest Period.
20. Information undertakings
The undertakings in this Clause 20 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
20.1 Financial statements
The Borrower shall supply to the Agent in sufficient copies for all the
Lenders:
(a) as soon as the same become available, but in any event within
180 days after the end of each of such Obligor's respective
financial years:
(i) the Borrower's audited consolidated and
unconsolidated financial statements for that
financial year; and
(ii) each Guarantor's respective audited consolidated (to
the extent available) and unconsolidated financial
statements for that financial year; and
(b) as soon as the same become available, but in any event within
90 days after the end of each half of each of its financial
years, its consolidated and unconsolidated financial
statements for that financial half year.
20.2 Compliance Certificate
(a) The Borrower shall supply to the Agent, with each set of
consolidated financial statements delivered pursuant to
paragraphs (a) (i) and (b) of Clause 20.1 (Financial
statements), a Compliance Certificate setting out (in
reasonable detail) computations as to compliance with Clause
21 (Financial Covenants) as at the date as at which those
financial statements were drawn up.
(b) Each Compliance Certificate shall be signed by an Authorised
Signatory of the Borrower and, if required to be delivered
with the consolidated financial statements delivered pursuant
to paragraph (a) (i) of Clause 20.1 (Financial statements), by
the Borrower's auditors.
20.3 Requirements as to financial statements
(a) Each set of financial statements delivered by the Borrower
pursuant to Clause 20.1 (Financial statements) shall be
certified by an Authorised Signatory of the relevant company
as fairly representing its financial condition as at the date
as at which those financial statements were drawn up.
(b) The Borrower shall procure that each set of financial
statements delivered pursuant to Clause 20.1 (Financial
statements) is prepared using GAAP and accounting practices
and financial reference periods consistent with those applied
in the preparation of the audited Original Financial
Statements for that Obligor unless, in relation to any set of
financial statements, it notifies the Agent that there has
been a change in GAAP, or the accounting practices or
reference periods and, unless amendments are agreed in
accordance with paragraph (c) of this Clause 20.3, its
auditors (or, if appropriate, the auditors of the Obligor)
deliver to the Agent:
(i) a description of any change necessary for those
financial statements to reflect the GAAP, accounting
practices and reference periods upon which that
Obligor's audited Original Financial Statements were
prepared; and
(ii) sufficient information, in form and substance as may
be reasonably required by the Agent, to enable the
Lenders to determine whether Clause 21 (Financial
covenants) has been complied with and make an
accurate comparison between the financial position
indicated in those financial statements and that
Obligor's audited Original Financial Statements.
(c) If the Borrower adopts International Accounting Standards, the
Borrower and the Agent shall, at the Borrower's request,
negotiate in good faith with a view to agreeing such
amendments to the financial covenants in Clause 21 (Financial
Covenants) and the ratios used to calculate the Margin and, in
each case, the definitions used therein as may be necessary to
ensure that the criteria for evaluating the Group's financial
condition grant to the Lenders protection equivalent to that
which would have been enjoyed by them had the Borrower not
adopted International Accounting Standards. Any amendments
agreed will take effect on the date agreed between the Agent
and the Borrower subject to the consent of the Majority
Lenders. If no such agreement is reached within 90 days of the
Borrower's request, the Borrower will remain subject to the
obligation to deliver the information specified in paragraph
(b) of this Clause 20.3.
20.4 Information: miscellaneous
The Borrower shall supply to the Agent (in sufficient copies for all
the Lenders, if the Agent so requests):
(a) all documents dispatched by the Borrower to its shareholders
(or any class of them) or its creditors generally at the same
time as they are dispatched;
(b) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which
are current, threatened or pending against any member of the
Group, and which might, if adversely determined, have a
Material Adverse Effect; and
(c) promptly, such further information regarding the financial
condition, assets and business of any Obligor or member of the
Group as the Agent (or any Lender through the Agent) may
reasonably request (including, but not limited to, information
on Rating, if such credit rating has not been publicly
announced) other than any information the disclosure of which
would result in a breach of any applicable law or regulation
or confidentiality agreement entered into in good faith
provided that the Borrower shall use reasonable efforts to be
released from any such confidentiality agreement.
20.5 Notification of default
(a) Each Obligor shall notify the Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon
becoming aware of its occurrence (unless that Obligor is aware
that a notification has already been provided by another
Obligor).
(b) Promptly upon a request by the Agent, the Borrower shall
supply to the Agent a certificate signed by an Authorised
Signatory on its behalf certifying that no Default is
continuing (or if a Default is continuing, specifying the
Default and the steps, if any, being taken to remedy it).
20.6 Money laundering obligations
(a) Each Obligor shall promptly upon the request of the Agent or
any Lender supply, or procure the supply of, such
documentation (if any) and other evidence (if any) as is
reasonably requested by the Agent (for itself or on behalf of
any Lender) or any Lender (for itself or on behalf of any
prospective New Lender) in order for the Agent, such Lender or
any prospective New Lender to comply with its obligations
under any laws or regulations relating to money laundering.
(b) Each Lender shall promptly upon the request of the Agent
supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Agent (for itself)
in order for the Agent to comply with its obligations under
any laws or regulations relating to money laundering.
20.7 Notarisations
Each Obligor shall notify the Agent of any Notarisations referred to in
paragraph (a) (iv) of Clause 22.5 (Notarisation) promptly upon such
Notarisations taking place.
21. Financial Covenants
21.1 Financial definitions
In this Clause 21:
"Adjusted EBITDA" means, for any Relevant Period, the sum of (a) EBITDA
and (b) with respect to any business acquired during such period, the
sum of (i) the operating income and (ii) depreciation and amortization
expense for such business, as determined in accordance with GAAP for
such Relevant Period, provided that the Borrower need only make the
adjustments contemplated by "(b)" above if the operating income and
depreciation and amortization expense of the acquired business in the
12 Months prior to its acquisition amount to EUR 10,000,000 or more.
"Cemex Capital Contributions" means contributions in cash to the
capital of the Borrower by CEMEX S.A. de C.V. or by any of its
Subsidiaries not being a Subsidiary of the Borrower made after 1
January 2004.
"EBITDA" means EBITDA for the Relevant Period immediately preceding the
date on which it is to be calculated, operating profit plus annual
depreciation for fixed assets plus annual amortisation of intangible
assets plus annual amortisation of start-up costs of the Group plus
dividends received from non-consolidated companies and from companies
consolidated by the equity method plus an amount equal to the amount of
Cemex Capital Contributions made during such period immediately
preceding the date on which it is to be calculated (up to an amount
equal to the amount of Royalty Expenses made in such period). Such
calculation shall be made in accordance with GAAP.
"Finance Charges" means for any Relevant Period, the sum (without
duplication) of (a) all interest expense in respect of Financial
Indebtedness (including imputed interest on Capital Leases) for such
period plus (b) all debt discount and expense (including, without
limitation, expenses relating tithe issuance of instruments
representing Financial Indebtedness) amortized during such period plus
(c) amortization of discounts on sales of receivables during such
period plus (d) all factoring charges for such period plus (e) all
guarantee charges for such period plus (f) any charges analogous to the
foregoing relating to Off-Balance-Sheet Transactions for such period,
all determined on a consolidated basis in accordance with GAAP.
"Guarantees" means any guarantee or indemnity (in the case of the
latter for any specified amount or otherwise in the amount specified in
or for which provision has been made in the accounts of the
indemnifier) in any form made other than in the ordinary course of
business of the guarantor.
"Intellectual Property Rights" means all copyrights (including rights
in computer software), trade marks, service marks, business names,
patents, rights in inventions, registered designs, design rights,
database rights and similar rights, rights in trade secrets or other
confidential information and any other intellectual property rights and
any interests (including by way of license) in any of the foregoing (in
each case whether registered or not and including all applications for
the same) which may subsist in any given jurisdiction.
"Net Borrowings" means, at any time, the remainder of (a) Total
Borrowings at such time less (b) the aggregate amount of the following
items held by the Borrower and its Subsidiaries at such time: cash on
hand, marketable securities, investments in money market funds,
banker's acceptances, short-term deposits and other liquid investments.
"Off-Balance-Sheet Transactions" means any present or future financing
transaction not reflected as indebtedness on the consolidated balance
sheet of the Borrower, but being structured in a way that may result in
payment obligations by any Group member, excluding any financing
transaction in the form of:
(a) interest rate and currency exchange rate hedging agreements to
hedge risks arising in the normal course of business;
(b) transactions containing potential payments by any Group member
(e.g. via a put-option agreement or similar structures) under
which payments are incapable of being triggered until three
days after the Termination Date in relation to Facility A; or
(c) any supply arrangement or equipment lease in respect of energy
or raw material sourcing containing contingent obligations to
directly or indirectly purchase (including through the
purchase of shares or other equity participation) the
underlying operations or assets up to an aggregate maximum of
$100,000,000.
"Relevant Period" means each period of twelve Months ending on the last
day of the first half of the Borrower's financial year and each period
of twelve Months ending on the last day of the Borrower's financial
year.
"Rolling Basis" means the calculation of a ratio or an amount made at
the end of a financial half year in respect of that financial half year
and the immediately preceding financial half year.
"Royalty Expenses" means expenses incurred by the Borrower or any of
its Subsidiaries to CEMEX S.A. de C.V. or any of its Subsidiaries not
being a Subsidiary of the Borrower as (a) consideration for the
granting to the Borrower or any Subsidiary of a licence to use, exploit
and enjoy Intellectual Property Rights and any other intangible assets
such as, but not limited to, know-how, formulae, process technology and
other forms of intellectual and industrial property, whether or not
registered, held by CEMEX S.A. de C.V. or any of its Subsidiaries not
being a Subsidiary of the Borrower; or (b) fees, commissions or other
amounts accrued in respect of any management contract, services
contract, overhead expenses allocation arrangement or any other similar
transaction; provided that in clauses (a) and (b) such amounts shall
have been taken into consideration in the calculation of operating
profit under Spanish GAAP.
"Subordinated Debt" means debt granted by CEMEX S.A. de C.V. (a company
registered in Mexico) or any of its Subsidiaries not being a member of
the Group to the Borrower or any of its Subsidiaries on terms such that
no payments of principal may be made thereunder (including but not
limited to following any winding up, suspension de pagos or quiebra or
other like event of the Borrower) until the Agent has confirmed in
writing that all amounts outstanding hereunder have been paid in full.
"Total Borrowings" means without duplication, in respect of any person
all Guarantees granted by such person, plus all Off-Balance-Sheet
Transactions entered into by such person, plus all such person's
Financial Indebtedness, but excluding any Subordinated Debt.
21.2 Financial condition
The Borrower shall ensure that in respect of any Relevant Period:
(a) the ratio of Net Borrowings to Adjusted EBITDA calculated on a
Rolling Basis shall be less than or equal to 3.5:1; and
(b) the ratio of EBITDA to Finance Charges calculated on a Rolling
Basis shall be greater than or equal to 3:1.
21.3 Financial testing
The financial covenants set out in Clause 21.2 (Financial condition)
shall be tested semi-annually by reference to each of the Borrower's
consolidated financial statements delivered pursuant to and/or each
Compliance Certificate delivered with respect to any such consolidated
financial statements pursuant to Clause 20.1 (Financial statements) and
Clause 20.2 (Compliance Certificate).
21.4 Accounting terms
All accounting expressions which are not otherwise defined herein shall
have the meaning ascribed thereto in GAAP.
22. General undertakings
The undertakings in this Clause 22 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
22.1 Authorisations
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain
in full force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its
jurisdiction of incorporation to enable it to perform its obligations
under the Finance Documents and to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document.
22.2 Preservation of corporate existence
Subject to Clause 22.8 (Merger), each Obligor shall (and the Borrower
shall ensure that each of its Subsidiaries will), preserve and maintain
its corporate existence and rights.
22.3 Preservation of properties
Each Obligor shall (and the Borrower shall ensure that each of its
Subsidiaries will) maintain and preserve all of its properties that are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
22.4 Compliance with laws and regulations
(a) Each Obligor shall (and shall procure that each of its
Subsidiaries will) comply in all respects with all laws and
regulations to which it may be subject, if failure to so
comply would be likely to have a Material Adverse Effect.
(b) The Borrower shall (and shall procure that each of its
Subsidiaries will) comply with ERISA and will ensure that the
levels of contribution to pension schemes are and continue to
be sufficient to comply with all its and their material
obligations under such schemes and generally under applicable
laws and regulations, except where failure to make such
contributions would not reasonably be expected to have a
Material Adverse Effect.
22.5 Notarisation
(a) Subject to paragraph (b) of this Clause 22.5, the Borrower
shall not (and shall procure that none of its Subsidiaries
will) permit any of its unsecured indebtedness to be notarised
as a Spanish Public Document (any such notarisation, a
"Notarisation"), other than the following permitted
Notarisations ("Permitted Notarisations"):
(i) any Permitted Notarisations listed in Schedule 8
(Existing Notarisations) and any amendments or
modifications thereof, provided that any such
amendment or modification shall not result in the
increase of the principal amount of the relevant
indebtedness nor the extension of the maturity
thereof nor, for the avoidance of doubt, relate to
any refinancing of the relevant indebtedness;
(ii) Notarisations which are required by applicable law or
regulation or which arise by operation of law other
than pursuant to any issue of debt securities in
accordance with Article 285 of the Spanish
Corporations Law (Ley de Sociedades Anonimas);
(iii) Notarisations with the prior written consent of the
Majority Lenders;
(iv) any Notarisations securing indebtedness the principal
amount of which (when aggregated with the principal
amount of any other Notarisations other than any
Permitted Notarisations under paragraphs (i) or (iii)
above) do not exceed EUR 100,000,000 (or its
equivalent in another currency or currencies); and
(v) any Notarisations relating to indebtedness in respect
of any sale and purchase agreement customarily
registered in a public register in Spain and payment
of which indebtedness is made within seven days of
the date of such agreement.
(b) Paragraph (a) of this Clause 22.5 shall not apply if the
Borrower, concurrently with any such Notarisation (not being a
Permitted Notarisation) referred to in paragraph (a) of this
Clause 22.5 and at its own cost and expense, causes this
Agreement to be the subject of a Notarisation.
22.6 Negative pledge
The Borrower shall not and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or permit to exist any
Security on or with respect to any of its property or assets or those
of any Subsidiary, whether now owned or held or hereafter acquired,
other than the following Security ("Permitted Security"):
(a) Security for taxes, assessments and other governmental charges
the payment of which is being contested in good faith by
appropriate proceedings promptly initiated and diligently
conducted and for which such reserves or other appropriate
provision, if any, as shall be required by GAAP shall have
been made;
(b) statutory liens of landlords and liens of carriers,
warehousemen, mechanics and materialmen incurred in the
ordinary course of business for sums not yet due or the
payment of which is being contested in good faith by
appropriate proceedings promptly initiated and diligently
conducted and for which such reserves or other appropriate
provision, if any, as shall be required by GAAP shall have
been made;
(c) liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation,
unemployment insurance and other types of social security;
(d) any judgment lien, unless the judgment it secures shall not,
within 60 days after the entry thereof, have been discharged
or execution thereof stayed pending appeal, or shall not have
been discharged within 60 days after the expiration of any
such stay;
(e) Security existing on the date of this Agreement as described
in Schedule 7 (Existing Security) provided that the amount
secured thereby is not increased;
(f) any Security on property acquired by the Borrower or any of
its Subsidiaries after the date of this Agreement that was
existing on the date of acquisition of such property; provided
that such Security was not incurred in anticipation of such
acquisition, and any Security created to secure all or any
payment of the purchase price, or to secure indebtedness
incurred or assumed to pay all or any part of the purchase
price, of property acquired by the Borrower or any of its
Subsidiaries after the date of this Agreement provided,
further, that (i) any such Security permitted pursuant to this
paragraph (f) shall be confined solely to the item or items of
property so acquired (including, in the case of any
acquisition of a corporation through the acquisition of 51% or
more of the voting stock of such corporation, the stock and
assets of any acquired Subsidiary or acquiring Subsidiary by
which the acquired Subsidiary will be directly or indirectly
controlled) and, if required by the terms of the instrument
originally creating such Security, other property which is an
improvement to, or is acquired for specific use with, such
acquired property; (ii) if applicable, any such Security shall
be created within nine Months after, in the case of property,
its acquisition, or, in the case of improvements, their
completion; and (iii) no such Security shall be made in
respect of any indebtedness in relation to repayment of which
recourse may be had to any member of the Group other than in
relation to the item or items as referred to in (i) above;
(g) any Security renewing, extending or refinancing the
indebtedness to which any Security permitted by paragraph (f)
above relates; provided that the principal amount of
indebtedness secured by such Security immediately prior
thereto is not increased and such Security is not extended to
other property;
(h) the transfer of shares or any other instrument of title
representing an equity participation in the Asia Fund into a
trust;
(i) any Security created on shares representing no more than a
Stake in the capital stock of any of the Borrower's
Subsidiaries solely as a result of the deposit or transfer of
such shares into a trust or a special purpose corporation
(including any entity with legal personality) of which such
shares constitute the sole assets provided that the proceeds
from the deposit or transfer of such shares into such trust,
corporation or entity and from any transfer of or
distributions in respect of the Borrower's or any Subsidiary's
interest in such trust, corporation or entity are applied as
provided under Clause 22.7 (Disposals) and provided further
that such Security may not secure Financial Indebtedness of
the Borrower or any Subsidiary unless otherwise permitted
under this Clause 22.6 and that the economic and voting rights
in such capital stock is maintained by the Borrower in its
Subsidiaries;
(j) any Security permitted by the Agent, acting on the
instructions of the Majority Lenders;
(k) any securitisation of receivables notwithstanding that it is
made at discount from the amount due on such receivables and
provided that it is made on a non recourse basis or that
recourse is directly or indirectly limited to collection of
the receivables plus related interest and financial and
collection costs and expenses;
(l) in addition to the Security permitted by the foregoing
paragraphs (a) to (k), Security securing indebtedness of the
Borrower and its Subsidiaries (taken as a whole) not in excess
of an amount equal to 5% of the Adjusted Consolidated Net
Tangible Assets of the Group, as determined in accordance with
GAAP;
unless, in each case, the Obligors have made or caused to be made
effective provision whereby the obligations hereunder are secured
equally and rateably with, or prior to, the indebtedness secured by
such Security (other than Permitted Security) for so long as such
indebtedness is so secured.
For the purposes of paragraph (l) of this Clause 22.6, "Adjusted
Consolidated Net Tangible Assets" means, with respect to any person,
the total assets of such person and its Subsidiaries (less applicable
depreciation, amortisation and other valuation reserves), including any
write-ups or restatements required under GAAP (other than with respect
to items referred to in (ii) below), minus (i) all current liabilities
of such person and its Subsidiaries (excluding the current portion of
long-term debt) and (ii) all goodwill, trade names, trademarks,
licences, concessions, patents, un-amortised debt discount and expense
and other intangibles, all as determined on a consolidated basis in
accordance with GAAP.
22.7 Disposals
(a) Subject to paragraph (b) of this Clause 22.7, the Borrower shall
not (and the Borrower shall ensure that none of its Subsidiaries will),
without the prior written consent of the Majority Lenders, enter into a
single transaction or a series of transactions (whether related or not)
and whether voluntary or involuntary to sell, lease, transfer or
otherwise dispose of all its assets or a substantial part of its assets
representing more than 5 per cent. in aggregate of the total
consolidated assets of the Group, calculated by reference to the latest
consolidated financial statements of the Borrower, delivered pursuant
to paragraph (a) (i) of Clause 20.1 (Financial statements), unless (i)
full value for such assets is received by the Borrower or its
Subsidiaries; (ii) an amount equal to the net proceeds of any such
sale, lease, transfer or other disposal to the extent that such sale,
lease, transfer or other disposal relates to assets representing more
than 5 per cent. in aggregate of the total consolidated assets of the
Group, calculated by reference to the latest consolidated financial
statements of the Borrower delivered pursuant to paragraph (a) (i) of
Clause 20.1 (Financial statements) is reinvested within twelve Months
of receipt by the Borrower or its Subsidiaries in the business of the
Group; and (iii) neither such sale, lease, transfer or other disposal
nor such reinvestment directly results in an adverse change to the
Rating of the Borrower as at the date hereof (namely, S&P:BBB- and
Moody's:Baa3).
(b) Paragraph (a) of this Clause 22.7 does not apply to any sale,
lease, transfer or other disposal of assets:
(i) made on arm's length terms and for fair market value
in the ordinary course of business of the disposing
entity;
(ii) in respect of any securitisation of receivables
notwithstanding that it is made at discount from the
amount due on such receivables and provided that it
is made on a non-recourse basis or that recourse is
directly or indirectly limited to collection of the
receivables plus related interest and financial and
collection costs and expenses;
(iii) from any member of the Group to another member of the
Group on arm's length terms and for fair market or
book value provided that the exception contained in
this paragraph (iii) shall not apply to any sale,
lease, transfer or other disposal of an asset
(A) from any Obligor to another member of the
Group which is not an Obligor unless the
person to whom such sale, lease, transfer or
other disposal is made (the "Transferee")
becomes a Guarantor; or
(B) from any Material Subsidiary to another
member of the Group which is not a Material
Subsidiary unless the person making such
sale, lease, transfer or other disposal does
not cease to be a Material Subsidiary or, if
it ceases to be a Material Subsidiary, any
Transferee shall be deemed to be a Material
Subsidiary;
(iv) (A) in respect of which the net proceeds are used to
repay any amounts outstanding hereunder in an amount
equal to such net proceeds and (B) if the Available
Commitments in an amount equal thereto are cancelled;
(v) in respect of which the proceeds are applied pursuant
to any prepayment requirement included as at the date
hereof in existing loan agreements of any Subsidiary
in relation to the use of proceeds received from the
disposal of any assets.
22.8 Merger
(a) Subject to paragraphs (b) and (c) of this Clause 22.8, unless
it has obtained the prior written approval of the Majority
Lenders, no Obligor shall (and the Borrower shall ensure that
none of its Subsidiaries will) enter into any amalgamation,
demerger, merger or other corporate reconstruction (a
"Reconstruction"), other than (i) a Reconstruction relating
only to the Borrower's Subsidiaries inter se; (ii) a
Reconstruction between the Borrower and any of its
Subsidiaries; or (iii) a solvent reorganisation or liquidation
of any of the Subsidiaries not being Obligors, provided that
in any case no Default shall have occurred and be continuing
at the time of such transaction or would result therefrom and
provided further that (a) none of the Security (if any)
granted to the Lenders nor the guarantees granted by the
Guarantors hereunder is or are adversely affected as a result,
and (b) the resulting entity, if it is not an Obligor, assumes
the obligations of the Obligor the subject of the merger.
(b) Subject to paragraph (c) of this Clause 22.8, the Obligors may
merge with any other person if the book value of such person's
assets prior to the merger does not exceed 3 per cent. of the
book value of the Group's assets taken as a whole considered
on a consolidated basis.
(c) In paragraphs (a) and (b) of this Clause 22.8, the Rating of
the Borrower as of the date hereof (namely, S&P:BBB- and
Moody's:Baa3) shall not be adversely affected whether at the
time of, or within 3 Months of, the date of announcement of a
Reconstruction, directly as a result of any merger involving
the Borrower, and the resulting entity, if it is not an
Obligor, shall assume the obligations of the Obligor the
subject of the merger.
22.9 Change of business
(a) None of the Obligors shall make a substantial change to the
general nature of its business from that carried on at the
date of this Agreement and there shall be no cessation of
business in relation to any of the Obligors (save (except in
the case of the Borrower which shall in no event cease or
substantially change its business) unless another Obligor
continues to operate any such business).
(b) The Borrower shall procure that no substantial change is made
to the general nature of the business of any of its Material
Subsidiaries (other than a Guarantor) from that carried on at
the date of this Agreement and that there shall be no
cessation of such business.
22.10 Insurance
The Obligors shall (and the Borrower shall ensure that each of its
Material Subsidiaries (other than the Obligors) will) maintain
insurances on and in relation to its business and assets with reputable
underwriters or insurance companies against those risks and to the
extent as is usual for companies carrying on the same or substantially
similar business.
22.11 Environmental Compliance
The Borrower shall (and the Borrower shall ensure that each of its
Subsidiaries will) comply in all material respects with all
Environmental Law and obtain and maintain any Environmental Permits and
take all reasonable steps in anticipation of known or expected future
changes to or obligations under the same, in each case where failure to
do so might reasonably be expected to have a Material Adverse Effect.
22.12 Environmental Claims
The Borrower shall inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same:
(a) if any Environmental Claim has been commenced or (to the best
of the Borrower's knowledge and belief) is threatened against
any member of the Group, or
(b) of any facts or circumstances which will or are reasonably
likely to result in any Environmental Claim being commenced or
threatened against any member of the Group,
where the claim would be reasonably likely, if determined against that
member of the Group, to have a Material Adverse Effect.
22.13 Transactions with Affiliates
Each Obligor shall (and the Borrower shall ensure that its Subsidiaries
will) ensure that any transactions with respective Affiliates are on
terms that are fair and reasonable and no less favourable to such
Obligor or such Subsidiary than it would obtain in a comparable
arm's-length transaction with a person not an Affiliate.
22.14 Pari passu ranking
Each Obligor shall ensure that its payment obligations under the
Finance Documents rank at least pari passu with the claims of all its
other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law or regulation applying to companies
generally from time to time.
22.15 Payment restrictions affecting Subsidiaries
The Borrower shall not enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement or
arrangement directly limiting the ability of any of its Subsidiaries
to:
(a) declare or pay dividends or other distributions in respect of
its or their respective equity interests in a Subsidiary,
except any agreement or arrangement (other than in relation to
the Asia Fund as at the date hereof) entered into by a person
prior to such person becoming a Subsidiary, in which case the
Borrower shall use its reasonable endeavours to remove such
limitations. If, however, as a result of the acquisition of
such person, any of the Ratings assigned by S&P or Moody's to
the Borrower or any of the Ratings assigned by S&P or Moody's
to any issue under the Euro 2,000 million medium term note
programme guaranteed by the Borrower and the guarantors (the
"Programme") (i) are reduced but the Ratings of both S&P and
Moody's of the Borrower and the Programme remain Investment
Grade, the Borrower shall use its best endeavours to remove
such limitation; or (ii) are reduced below Investment Grade,
the Borrower shall procure that such limitation be removed
within 3 Months of the date of such acquisition. In any event,
the Borrower shall have the option, in any of the
circumstances described above, to procure that the person
acquired becomes a Guarantor instead of removing such
limitations;
or
(b) repay any intercompany indebtedness owed by any Subsidiary to
any Obligor and, for the avoidance of doubt, subordination
provisions shall not be considered a limitation for the
purpose of this Clause 22.15.
22.16 Indebtedness of Guarantors
None of the Guarantors shall incur or permit to exist any Financial
Indebtedness other than:
(a) Financial Indebtedness in respect of its taxes or costs,
incurred pursuant to legal requirements;
(b) Financial Indebtedness owed to another member of the Group;
(c) Financial Indebtedness of another member of the Group
guaranteed by a Guarantor; and
(d) Financial Indebtedness not falling within paragraph (a) to (c)
above, in an aggregate amount not exceeding Euro 3,000,000 (or
the equivalent thereof in any other currency).
22.17 Notification of adverse change in Rating
The Borrower shall promptly notify the Agent of any adverse change in
its Rating or Outlook.
23. Events of Default
Each of the events or circumstances set out in this Clause 23 is an
Event of Default.
23.1 Non-payment
An Obligor does not pay on the due date any amount payable pursuant to
a Finance Document at the place at and in the currency in which it is
expressed to be payable unless such failure to pay is caused by an
administrative error or technical difficulties within the banking
system in relation to the transmission of funds and payment is made
within three Business Days of its due date.
23.2 Financial covenants
Any requirement of Clause 21 (Financial Covenants) is not satisfied.
23.3 Other obligations
(a) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 23.1
(Non-payment) and Clause 23.2 (Financial covenants)).
(b) No Event of Default under paragraph (a) of this Clause 23.3
above will occur if the failure to comply is capable of remedy
and is remedied within fifteen Business Days of the Agent
giving written notice to the Borrower or the Borrower becoming
aware of the failure to comply whichever is the earlier.
23.4 Misrepresentation
Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or any other document delivered by or on
behalf of any Obligor under or in connection with any Finance Document
is or proves to have been incorrect or misleading in any material
respect when made or deemed to be made.
23.5 Cross acceleration
(a) Any Financial Indebtedness of any Obligor or member of the
Group is not paid when due nor within any originally
applicable grace period.
(b) Any Financial Indebtedness of any Obligor or member of the
Group is declared to be or otherwise becomes due and payable
prior to its specified maturity as a result of an event of
default (however described).
(c) No Event of Default will occur under this Clause 23.5 if the
aggregate amount of Financial Indebtedness falling within
paragraphs (a) and (b) of this Clause 23.5 above is less than
EUR 27,500,000 (or its equivalent in any other currency or
currencies).
23.6 Insolvency
(a) Any of the Obligors or Material Subsidiaries is unable or
admits inability to pay its debts as they fall due, suspends
making payments on any of its debts or, by reason of actual or
anticipated financial difficulties, commences negotiations
with one or more of its creditors with a view to rescheduling
any of its indebtedness.
(b) The value of the assets of any of the Obligors or Material
Subsidiaries is less than its liabilities (taking into account
contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of any
of the Obligors or Material Subsidiaries.
23.7 Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by
way of voluntary arrangement, scheme of arrangement or
otherwise) of any of the Obligors or Material Subsidiaries
other than a solvent liquidation or reorganisation of any of
the Material Subsidiaries not being Obligors;
(b) a composition, assignment or arrangement with any creditor of
any of the Obligors or Material Subsidiaries;
(c) the appointment of a liquidator (other than in respect of a
solvent liquidation of any of the Material Subsidiaries not
being Obligors), receiver, administrator, administrative
receiver, compulsory manager or other similar officer in
respect of any of the Obligors or Material Subsidiaries or any
of their assets;
or any analogous procedure or step is taken in any jurisdiction.
23.8 Expropriation and sequestration
Any expropriation or sequestration affects any asset or assets of any
Obligor or any Material Subsidiary and has a Material Adverse Effect.
23.9 Creditors' process and enforcement of Security
(a) Any Security is enforced against any Obligor or any Material
Subsidiary.
(b) Any attachment, distress or execution affects any asset or
assets of any Obligor or any Material Subsidiary.
(c) No Event of Default under paragraphs (a) or (b) of this Clause
23.9 above will occur if:
(i) the action is being contested in good faith by
appropriate proceedings;
(ii) the principal amount of the indebtedness secured by
such Security or in respect of which such attachment,
distress or execution is carried out represents less
than EUR 27,500,000 (or its equivalent in any other
currency or currencies); and
(iii) the enforcement proceedings, attachment, distress or
execution is or are discharged within 28 days of
commencement.
23.10 Failure to comply with judgment
Any Obligor or any Material Subsidiary fails to comply with or pay any
sum due from it under any judgment or any order made or given by any
court of competent jurisdiction save unless payment of any such sum is
suspended pending an appeal.
23.11 Unlawfulness
It is or becomes unlawful for an Obligor to perform any of its
obligations under the Finance Documents.
23.12 Repudiation
An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
23.13 Change of Control
If CEMEX, S.A. de C.V. ceases to:
(a) be entitled to (whether by way of ownership of shares, proxy,
contract, agency or otherwise):
(i) cast, or control the casting of, at least 51 per
cent. of the maximum number of votes that might be
cast at a general meeting of the Borrower;
(ii) appoint or remove all, or the majority, of the
directors or other equivalent officers of the
Borrower;
(iii) give directions with respect to the operating and
financial policies of the Borrower which the
directors or other equivalent officers of the
Borrower are obliged to comply with; or
(b) hold at least 51 per cent. of the common shares in the
Borrower.
23.14 Material adverse change
Any material adverse change arises in the financial condition of the
Group taken as a whole which the Majority Lenders reasonably determine
would result in the failure by any Obligor to perform its payment
obligations under any of the Finance Documents.
23.15 Acceleration
On and at any time after the occurrence of an Event of Default the
Agent may, and shall if so directed by the Majority Lenders, by notice
to the Borrower:
(a) cancel the Total Commitments whereupon they shall immediately
be cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by
the Agent on the instructions of the Majority Lenders.
SECTION 9
CHANGES TO PARTIES
24. Changes to the Lenders
24.1 Assignments and transfers by the Lenders
Subject to this Clause 24, a Lender (the "Existing Lender") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution or to a securitisation trust
or fund or (subject to paragraph (a) of Clause 24.2 (Conditions of
assignment or transfer) other entity (the "New Lender") provided that
any assignment or transfer in respect of Facility A or Facility C by a
Lender having participations in both Facility A and Facility C shall be
made proportionally as between Facility A and Facility C.
24.2 Conditions of assignment or transfer
(a) The consent of the Borrower is required for an assignment or
transfer to an entity which is not a bank or financial
institution or a securitisation trust or fund.
(b) The consent of the Borrower to an assignment or transfer must
not be unreasonably withheld or delayed. The Borrower will be
deemed to have given its consent five Business Days after the
Existing Lender has requested it unless consent is expressly
refused by the Borrower within that time.
(c) An assignment will only be effective on:
(i) receipt by the Agent of written confirmation from the
New Lender that the New Lender will assume the same
obligations to the other Finance Parties as it would
have been under if it was an Original Lender; and
(ii) performance by the Agent of all checks relating to
any person that it is required to carry out pursuant
to any laws or regulations relating to money
laundering in relation to such assignment to a New
Lender, the completion of which the Agent shall
promptly notify to the Existing Lender and the New
Lender.
(d) A transfer will only be effective if the procedure set out in
Clause 24.5 (Procedure for transfer) is complied with.
(e) If:
(i) a Lender assigns or transfers any of its rights or
obligations under the Finance Documents or changes
its Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor
would be obliged to make a payment to the New Lender
or Lender acting through its new Facility Office
under Clause 13 (Tax gross-up and indemnities) or
Clause 14 (Increased costs),
then the New Lender or Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses
to the same extent as the Existing Lender or Lender acting
through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
24.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of EUR
2,000.
24.4 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender
makes no representation or warranty and assumes no
responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or
oral) made in or in connection with any Finance
Document or any other document,
and any representations or warranties implied by law or
regulation are excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own
independent investigation and assessment of the
financial condition and affairs of each Obligor and
its related entities in connection with its
participation in this Agreement and has not relied
exclusively on any information provided to it by the
Existing Lender in connection with any Finance
Document; and
(ii) will continue to make its own independent appraisal
of the creditworthiness of each Obligor and its
related entities whilst any amount is or may be
outstanding under the Finance Documents or any
Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under
this Clause 24; or
(ii) support any losses directly or indirectly incurred by
the New Lender by reason of the non-performance by
any Obligor of its obligations under the Finance
Documents or otherwise.
24.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 24.2 (Conditions
of assignment or transfer) a transfer is effected on the
Transfer Date in accordance with paragraph (b) below provided
that a duly completed Transfer Certificate is delivered to the
Agent by the Existing Lender and the New Lender at least five
Business Days prior to the Transfer Date.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its
rights and obligations under the Finance Documents
each of the Obligors and the Existing Lender shall be
released from further obligations towards one another
under the Finance Documents and their respective
rights against one another under the Finance
Documents shall be cancelled (being the "Discharged
Rights and Obligations");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor
and the New Lender have assumed and/or acquired the
same in place of that Obligor and the Existing
Lender;
(iii) the Agent, the Arranger, the New Lender and other
Lenders shall acquire the same rights and assume the
same obligations between themselves as they would
have acquired and assumed had the New Lender been an
Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer
and to that extent the Agent, the Arranger and the
Existing Lender shall each be released from further
obligations to each other under the Finance
Documents; and
(iv) the New Lender shall become a Party as a "Lender".
24.6 Copy of Transfer Certificate to Borrower
The Agent shall, as soon as reasonably practicable after it has
received a Transfer Certificate, send to the Borrower a copy of that
Transfer Certificate.
24.7 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, this Agreement or any Obligor; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents
as that Lender shall consider appropriate if, in relation to paragraphs
(a) and (b) above, the person to whom the information is to be given
has entered into a Confidentiality Undertaking.
24.8 Interest
All interest accrued in the Interest Period in which a transfer is
effective shall be paid to the Existing Lender.
25. Changes to the Obligors
25.1 Assignments and transfers by Obligors
No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
25.2 Additional Guarantors
(a) The Borrower shall procure that, in respect of (i) each of its
Subsidiaries to whom a sale, lease, transfer or other disposal
is made by an Obligor pursuant to paragraph (b) (iii) (A) of
Clause 22.7 (Disposals); (ii) each of its Subsidiaries which
is or which is deemed to be a Material Subsidiary, whether
pursuant to paragraph (b) (iii) (B) of Clause 22.7 (Disposals)
or otherwise; or (iii) each person whom the Borrower elects to
procure to become a Guarantor pursuant to Clause 22.15
(Payment restrictions affecting Subsidiaries), such Subsidiary
or the Holding Company of such Material Subsidiary or such
person respectively become an Additional Guarantor (unless
such Subsidiary or such Material Subsidiary (in the case of
(i) and (ii) respectively) is already a Guarantor) by:
(A) the Borrower delivering to the Agent a duly-completed
and executed Accession Letter; and
(B) the Agent receiving from the Borrower all of the
documents and other evidence referred listed in Part
II of Schedule 2 (Conditions Precedent required to be
delivered by an Additional Guarantor) in relation to
that Additional Guarantor.
(b) The Agent shall notify the Guarantors and the Lenders promptly
upon being satisfied that it has received all the documents
and other evidence listed in Part II of Schedule 2 (Conditions
Precedent required to be delivered by an Additional
Guarantor).
(c) For the purposes of this Clause 25.2 only, a "Holding Company"
means, in relation to a Material Subsidiary, any company or
corporation in respect of which it is a Subsidiary and which
is not in turn a Subsidiary of a Holding Company (as defined
in Clause 1.1 (Definitions)).
25.3 Resignation of Guarantor
A Guarantor (a "Resigning Guarantor") will cease to be a Guarantor if:
(a) it makes a sale, lease, transfer or other disposal of all or
substantially all (but not a part only) of its assets to
another member of the Group which is or becomes a Guarantor in
accordance with paragraph (a) (i) of Clause 25.2 (Additional
Guarantors); or
(b) its Holding Company becomes a Guarantor,
provided that such Resigning Guarantor also, if applicable, ceases
concurrently to be a guarantor in respect of any other indebtedness of
the Group or of any member of the Group and provided further that such
Resigning Guarantor notifies the Agent of any sale, lease, transfer or
other disposal in accordance with paragraph (a) of this Clause 25.3.
25.4 Repetition of Representations
Delivery of an Accession Letter constitutes confirmation by the
relevant Affiliate that the Repeating Representations are true and
correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.
SECTION 10
THE FINANCE PARTIES
26. Role of the Agent and the Arranger
26.1 Appointment of the Agent
(a) Each other Finance Party appoints the Agent to act as its
agent under and in connection with the Finance Documents.
(b) Each other Finance Party authorises the Agent to exercise the
rights, powers, authorities and discretions specifically given
to the Agent under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities
and discretions.
26.2 Duties of the Agent
(a) The Agent shall promptly forward to a Party the original or a
copy of any document (including, but not limited to, the
Borrower's annual financial statements) which is delivered to
the Agent for that Party by any other Party.
(b) The Agent is not obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to
another Party.
(c) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify
the other Finance Parties.
(d) If the Agent is aware of the non-payment of any principal,
interest or fee payable to a Finance Party (other than the
Agent or the Arranger) under this Agreement it shall promptly
notify the other Finance Parties.
(e) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
26.3 Role of the Arranger
Except as specifically provided in the Finance Documents, the Arranger
has no obligations of any kind to any other Party under or in
connection with any Finance Document.
26.4 No fiduciary duties
(a) Nothing in this Agreement constitutes the Agent or the
Arranger as a trustee or fiduciary of any other person.
(b) Neither the Agent nor the Arranger shall be bound to account
to any Lender for any sum or the profit element of any sum
received by it for its own account.
26.5 Business with the Group
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any
member of the Group.
26.6 Rights and discretions of the Agent
(a) The Agent may rely on:
(i) any representation, notice or document (including,
for the avoidance of doubt, any representation,
notice or document communicating the consent of the
Majority Lenders pursuant to Clause 35.1 (Required
consents) believed by it to be genuine, correct and
appropriately authorised; and
(ii) any statement made by a director, authorised
signatory or employee of any person regarding any
matters which may reasonably be assumed to be within
his knowledge or within his power to verify.
(b) The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual
knowledge of a Default arising under Clause 23.1
(Non-payment));
(ii) any right, power, authority or discretion vested in
any Party or the Majority Lenders has not been
exercised; and
(iii) any notice or request made by the Borrower (other
than a Utilisation Request or Selection Notice) is
made on behalf of and with the consent and knowledge
of the Guarantor.
(c) The Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other
experts.
(d) The Agent may act in relation to the Finance Documents through
its personnel and agents.
(e) The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this
Agreement.
(f) Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent nor the Arranger is obliged to
do or omit to do anything if it would or might in its
reasonable opinion constitute a breach of any law and
regulation or a breach of a fiduciary duty or duty of
confidentiality.
26.7 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document,
the Agent shall (i) exercise any right, power, authority or
discretion vested in it as Agent in accordance with any
instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising
any right, power, authority or discretion vested in it as
Agent) and (ii) not be liable for any act (or omission) if it
acts (or refrains from taking any action) in accordance with
an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document,
any instructions given by the Majority Lenders will be binding
on all the Finance Parties.
(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or,
if appropriate, the Lenders) the Agent may act (or refrain
from taking action) as it considers to be in the best interest
of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal
or arbitration proceedings relating to any Finance Document.
26.8 Responsibility for documentation
Neither the Agent nor the Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness
of any information (whether oral or written) supplied by the
Agent, the Arranger, an Obligor or any other person given in
or in connection with any Finance Document or the Information
Memorandum; or
(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any
other agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any Finance
Document.
26.9 Exclusion of liability
(a) Without limiting paragraph (b) below, the Agent will not be
liable for any action taken by it under or in connection with
any Finance Document, unless directly caused by its wilful
misconduct.
(b) No Party (other than the Agent) may take any proceedings
against any officer, employee or agent of the Agent in respect
of any claim it might have against the Agent or in respect of
any act or omission of any kind by that officer, employee or
agent in relation to any Finance Document and any officer,
employee or agent of the Agent may rely on this Clause 26.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the
Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system
used by the Agent for that purpose.
(d) Nothing in this Agreement shall oblige the Agent or the
Arranger to carry out any checks pursuant to any laws or
regulations relating to money laundering in relation to any
person on behalf of any Lender and each Lender confirms to the
Agent and the Arranger that it is solely responsible for any
such checks it is required to carry out and that it may not
rely on any statement in relation to such checks made by the
Agent or the Arranger.
26.10 Lenders' indemnity to the Agent
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (otherwise than by reason of the
Agent's gross negligence or wilful misconduct) in acting as Agent under
the Finance Documents (unless the Agent has been reimbursed by an
Obligor pursuant to a Finance Document).
26.11 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in the European Union as successor by giving
notice to the other Finance Parties and the Borrower.
(b) Alternatively the Agent may resign by giving notice to the
other Finance Parties and the Borrower, in which case the
Majority Lenders (after consultation with the Borrower) may
appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent
in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Agent (after consultation
with the Borrower) may appoint a successor Agent (acting
through an office in the European Union).
(d) The retiring Agent shall, at its own cost, make available to
the successor Agent such documents and records and provide
such assistance as the successor Agent may reasonably request
for the purposes of performing its functions as Agent under
the Finance Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall
be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
this Clause 26. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves
as they would have had if such successor had been an original
Party.
(g) After consultation with the Borrower, the Majority Lenders
may, by notice to the Agent, require it to resign in
accordance with paragraph (b) above. In this event, the Agent
shall resign in accordance with paragraph (b) above.
26.12 Confidentiality
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions
or departments.
(b) If information is received by another division or department
of the Agent, it may be treated as confidential to that
division or department and the Agent shall not be deemed to
have notice of it.
26.13 Relationship with the Lenders
(a) The Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility
Office unless it has received not less than five Business Days
prior notice from that Lender to the contrary in accordance
with the terms of this Agreement.
(b) Each Lender shall supply the Agent with any information
required by the Agent in accordance with Schedule 4 (Mandatory
Cost Formulae).
26.14 Credit appraisal by the Lenders
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Agent and the Arranger that it
has been, and will continue to be, solely responsible for making its
own independent appraisal and investigation of all risks arising under
or in connection with any Finance Document including but not limited
to:
(a) the financial condition, status and nature of each member of
the Group;
(b) the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document;
(c) whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective
assets under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document; and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent,
any Party or by any other person under or in connection with
any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
under or in connection with any Finance Document.
26.15 Agent's Management Time
Any amount payable to the Agent under Clause 15.3 (Indemnity to the
Agent), Clause 17 (Costs and expenses) and Clause 26.10 (Lenders'
indemnity to the Agent) shall include the cost of utilising the Agent's
management time or other resources and will be calculated on the basis
of such reasonable daily or hourly rates as the Agent may notify to the
Borrower and the Lenders, and is in addition to any fee paid or payable
to the Agent under Clause 12 (Fees).
26.16 Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents
the Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent
would otherwise be obliged to make under the Finance Documents and
apply the amount deducted in or towards satisfaction of the amount
owed. For the purposes of the Finance Documents that Party shall be
regarded as having received any amount so deducted.
27. Conduct of business by the Finance Parties
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating
to its affairs (tax or otherwise) or any computations in
respect of Tax.
28. Sharing among the Finance Parties
28.1 Payments to Finance Parties
If a Finance Party (a "Recovering Finance Party") receives or recovers
any amount from an Obligor other than in accordance with Clause 29
(Payment mechanics) (whether by set-off or otherwise) and applies that
amount to a payment due under the Finance Documents then:
(a) the Recovering Finance Party shall, within three Business
Days, notify details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is
in excess of the amount the Recovering Finance Party would
have been paid had the receipt or recovery been received or
made by the Agent and distributed in accordance with Clause 29
(Payment mechanics), without taking account of any Tax which
would be imposed on the Agent in relation to the receipt,
recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days
of demand by the Agent, pay to the Agent an amount (the
"Sharing Payment") equal to such receipt or recovery less any
amount which the Agent determines may be retained by the
Recovering Finance Party as its share of any payment to be
made, in accordance with Clause 29.5 (Partial payments).
28.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Finance Party) in accordance with Clause 29.5
(Partial payments).
28.3 Recovering Finance Party's rights
(a) On a distribution by the Agent under Clause 28.2
(Redistribution of payments), the Recovering Finance Party
will be subrogated to the rights of the Finance Parties which
have shared in the redistribution.
(b) If and to the extent that the Recovering Finance Party is not
able to rely on its rights under paragraph (a) above, the
relevant Obligor shall be liable to the Recovering Finance
Party for a debt equal to the Sharing Payment which is
immediately due and payable.
28.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a
Recovering Finance Party becomes repayable and is repaid by that
Recovering Finance Party, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 28.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent
for account of that Recovering Finance Party an amount equal
to the appropriate part of its share of the Sharing Payment
(together with an amount as is necessary to reimburse that
Recovering Finance Party for its proportion of any interest on
the Sharing Payment which that Recovering Finance Party is
required to pay); and
(b) that Recovering Finance Party's rights of subrogation in
respect of any reimbursement shall be cancelled and the
relevant Obligor will be liable to the reimbursing Finance
Party for the amount so reimbursed.
28.5 Exceptions
(a) This Clause 28 shall not apply to the extent that the
Recovering Finance Party would not, after making any payment
pursuant to this Clause, have a valid and enforceable claim
against the relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any
other Finance Party any amount which the Recovering Finance
Party has received or recovered as a result of taking legal or
arbitration proceedings, if:
(i) it notified that other Finance Party of the legal or
arbitration proceedings; and
(ii) that other Finance Party had an opportunity to
participate in those legal or arbitration proceedings
but did not do so as soon as reasonably practicable
having received notice and did not take separate
legal or arbitration proceedings.
SECTION 11
ADMINISTRATION
29. Payment mechanics
29.1 Payments to the Agent
(a) On each date on which an Obligor or a Lender is required to
make a payment under a Finance Document, that Obligor or
Lender shall make the same available to the Agent (unless a
contrary indication appears in a Finance Document) for value
on the due date at the time and in such funds specified by the
Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
(b) Payments by Obligors or Lenders shall be made to such account
in New York (in relation to dollars), Tokyo (in relation to
yen) or a principal financial centre in a Participating Member
State or London (in relation to euro) with such bank as the
Agent specifies.
29.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 29.3 (Distributions to an
Obligor), Clause 29.4 (Clawback) and Clause 26.17 (Deduction from
amounts payable by the Agent) be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the
account of its Facility Office), to such account as that Party may
notify to the Agent by not less than five Business Days' notice with a
bank in New York (in relation to dollars), Tokyo (in relation to yen)
or the principal financial centre of a Participating Member State or
London (in relation to euro).
29.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 30 (Set-off) apply any amount received by it for that Obligor in
or towards payment (on the date and in the currency and funds of
receipt) of any amount due from that Obligor under the Finance
Documents or in or towards purchase of any amount of any currency to be
so applied.
29.4 Clawback
(a) Where a sum is to be paid to the Agent under the Finance
Documents for another Party, the Agent is not obliged to pay
that sum to that other Party (or to enter into or perform any
related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to
be the case that the Agent had not actually received that
amount, then the Party to whom that amount (or the proceeds of
any related exchange contract) was paid by the Agent shall on
demand refund the same to the Agent together with interest on
that amount from the date of payment to the date of receipt by
the Agent, calculated by the Agent to reflect its cost of
funds.
29.5 Partial payments
(a) If the Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Agent shall apply that
payment towards the obligations of that Obligor under the
Finance Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid
fees, costs and expenses of the Agent and the
Arranger under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any
accrued interest, fee or commission due but unpaid
under this Agreement;
(iii) thirdly, in or towards payment pro rata of any
principal due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other
sum due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary
the order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation
made by an Obligor.
29.6 No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
29.7 Business Days
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding
Business Day (if there is not).
(b) During any extension of the due date for payment of any
principal or Unpaid Sum under this Agreement interest is
payable on the principal or Unpaid Sum at the rate payable on
the original due date.
29.8 Currency of account
(a) Subject to paragraphs (b) to (e) below, the Base Currency (in
the case of Facility A and Facility B) and yen (in the case of
Facility C) is the currency of account and payment for any sum
due from an Obligor under any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or
Unpaid Sum shall be made in the currency in which that Loan or
Unpaid Sum is denominated on its due date.
(c) Each payment of interest shall be made in the currency in
which the sum in respect of which the interest is payable was
denominated when that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be
made in the currency in which the costs, expenses or Taxes are
incurred.
(e) Any amount expressed to be payable in a currency other than
the Base Currency (in respect of Facility A and Facility B) or
yen (in respect of Facility C) shall be paid in that other
currency.
29.9 Change of currency
(a) Unless otherwise prohibited by law or regulation, if more than
one currency or currency unit are at the same time recognised
by the central bank of any country as the lawful currency of
that country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in,
the currency of that country shall be translated
into, or paid in, the currency or currency unit of
that country designated by the Agent (after
consultation with the Borrower); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of
that currency or currency unit into the other.
(b) If a change in any currency of a country occurs, this
Agreement will be amended to comply with any generally
accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in
currency.
30. Set-off
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
31. Notices
31.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
31.2 Addresses
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in
connection with the Finance Documents is:
(a) in the case of the Borrower, that identified with its name
below;
(b) in the case of each Lender or any other Obligor, that notified
in writing to the Agent on or prior to the date on which it
becomes a Party; and
(c) in the case of the Agent, that identified with its name below,
or any substitute address or fax number or department or officer as the
Party may notify to the Agent (or the Agent may notify to the other
Parties, if a change is made by the Agent) by not less than five
Business Days' notice.
31.3 Delivery
(a) Any communication or document made or delivered by one person
to another under or in connection with the Finance Documents
will only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the
relevant address or five Business Days after being
deposited in the post postage prepaid in an envelope
addressed to it at that address,
and, if a particular department or officer is specified as
part of its address details provided under Clause 31.2
(Addresses), if addressed to that department or officer.
(b) Any communication or document to be made or delivered to the
Agent will be effective only when actually received by the
Agent and then only if it is expressly marked for the
attention of the department or officer identified with the
Agent's signature below (or any substitute department or
officer as the Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Agent.
(d) Any communication or document made or delivered to the
Borrower in accordance with this Clause will be deemed to have
been made or delivered to the Guarantor.
31.4 Notification of address and fax number
Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 31.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the
other Parties.
31.5 English language
(a) Any notice given under or in connection with any Finance
Document must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be:
(i) in English; or
(ii) if not in English or Spanish, accompanied by a
certified English translation and, in this case, the
English translation will prevail unless the document
is a constitutional, statutory or other official
document.
32. Calculations and certificates
32.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters
to which they relate.
32.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
32.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with
that market practice.
32.4 Spanish Civil Procedure
In the event that this Agreement is raised to a Spanish Public
Document, for the purposes of Article 572.2 of the Spanish Civil
Procedure Law (Ley de Enjuiciamiento Civil), all parties expressly
agree that the exact amount due at any time by the Obligors to the
Lenders will be the amount specified in a certificate issued by the
Agent (and/or any Lender) in accordance with Clause 32.2 (Certificates
and Determinations) as representative of the Lenders reflecting the
balance of the accounts referred to in Clause 32.1 (Accounts).
33. Partial invalidity
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law or
regulation of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions nor the legality, validity
or enforceability of such provision under the laws and regulations of
any other jurisdiction will in any way be affected or impaired.
34. Remedies and waivers
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the exercise
of any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies
provided by law or regulation.
35. Amendments and waivers
35.1 Required consents
(a) Subject to Clause 35.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of
the Majority Lenders and the Obligors and any such amendment
or waiver will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
35.2 Exceptions
(a) An amendment or waiver that has the effect of changing or
which relates to:
(i) the definition of "Majority Lenders" in Clause 1.1
(Definitions);
(ii) an extension to the Availability Period or to the
date of payment of any amount under the Finance
Documents;
(iii) a reduction in the Margin or a reduction in the
amount of any payment of principal, interest or fees;
(iv) an increase in or an extension of any Commitment;
(v) a change to the Borrower or any of the Guarantors;
(vi) any provision which expressly requires the consent of
all the Lenders; or
(vii) Clause 2.2 (Finance Parties' rights and obligations),
Clause 18 (Guarantee and Indemnity), Clause 24
(Changes to the Lenders), Clause 25 (Changes to the
Obligors) or this Clause 35; or
(viii) a change in the definition of Optional Currencies.
shall not be made without the prior consent of all the
Lenders.
(b) An amendment or waiver which relates to the rights or
obligations of the Agent or the Arranger may not be effected
without the consent of the Agent or the Arranger.
36. Counterparts
Each Finance Document 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 the Finance Document.
SECTION 12
GOVERNING LAW AND ENFORCEMENT
37. Governing law
37.1 This Agreement is governed by English law.
37.2 If any of the Original Guarantors is represented by an attorney or
attorneys in connection with the signing and/or execution and/or
delivery of this Agreement or any agreement or document referred to
herein or made pursuant hereto and the relevant power or powers of
attorney is or are expressed to be governed by the laws and regulations
of a particular jurisdiction, it is hereby expressly acknowledged and
accepted by the other parties hereto that such laws and regulations
shall govern the existence and extent of such attorney's or attorneys'
authority and the effects of the exercise thereof.
38. Enforcement
38.1 Jurisdiction
(a) The courts of England have exclusive jurisdiction to settle
any dispute arising out of or in connection with this
Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 38.1 is for the benefit of the Finance Parties
only. As a result, no Finance Party shall be prevented from
taking proceedings relating to a Dispute in any other courts
with jurisdiction. To the extent allowed by law and
regulation, the Finance Parties may take concurrent
proceedings in any number of jurisdictions.
38.2 Service of process
Without prejudice to any other mode of service allowed under any
relevant law or regulation, each Obligor (other than an Obligor
incorporated in England and Wales):
(a) irrevocably appoints Clifford Chance Secretaries Limited as
its agent for service of process in relation to any
proceedings before the English courts in connection with any
Finance Document; and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
THE ORIGINAL PARTIES
Part I
The Obligors
Name of Borrower Registration number
(or equivalent, if any)
Cemex Espana, S.A. N(0)Hoja-Registro Mercantil, Madrid:
M- 156542
NIF: A46/004214
Name of Guarantor Registration number
(or equivalent, if any)
Trade Register of the Chamber of Commerce and
Industry in Amsterdam (The Netherlands)
Cemex Caracas Investments B.V. 34121194
Cemex Caracas II Investments B.V. 34159953
Cemex Egyptian Investments B.V. 34108365
Cemex Manila Investments B.V. 34108359
Sandworth Plaza Holding B.V. 33234378
Part II
The Original Lenders
- ---------------------------------------------------------------------------------------------------------------
Name of Original Lender Facility A Commitment Facility B Commitment Facility C
(euro) (euro) Commitment
(yen)
- ---------------------------------------------------------------------------------------------------------------
Banco Bilbao Vizcaya Argentaria, S.A. 5,059,020.43 9,250,000.00 2,920,782,887
Societe Generale, S.A. 4,101,908.48 7,500,000.00 2,368,202,341
Banco Espanol de Credito S.A. 3,322,545.87 6,075,000.00 1,918,243,896
Banco Santander Central Hispano, S.A. 3,322,545.87 6,075,000.00 1,918,243,896
BNP Paribas, Sucursal en Espana 3,322,545.87 6,075,000.00 1,918,243,896
Citibank International plc, Sucursal en
Espana 3,322,545.87 6,075,000.00 1,918,243,896
HSBC Bank PLC, Sucursal en Espana 3,322,545.87 6,075,000.00 1,918,243,896
ING Belgium S.A., Sucursal en Espana 3,322,545.87 6,075,000.00 1,918,243,896
The Royal Bank of Scotland PLC 3,322,545.87 6,075,000.00 1,918,243,896
Banco de Galicia, S.A. 9,187,500.00 3,062,500.00
Banco de Sabadell, S.A. 9,187,500.00 3,062,500.00
Bank of America N.A., Sucursal en Espana 9,187,500.00 3,062,500.00
Caixa d'Estalvis de Catalunya 9,187,500.00 3,062,500.00
Caja Madrid 9,187,500.00 3,062,500.00
Fortis Bank, S.A., Sucursal en Espana 4,593,750.00 3,062,500.00 591,307,500
Natexis Banques Populaires, Sucursal en
Espana 9,187,500.00 3,062,500.00
WestLB Ireland plc 9,187,500.00 3,062,500.00
Banco Simeon, S.A. 6,825,000.00 2,275,000.00
ABN Amro Bank N.V., Sucursal en Espana 4,650,000.00 1,550,000.00
Banca di Roma SpA, Sucursal en Espana, Madrid 4,650,000.00 1,550,000.00
Banco Atlantico, S.A. 4,650,000.00 1,550,000.00
Banco de Valencia, S.A. 4,650,000.00 1,550,000.00
Banco Itau Europa S.A., Sucursal Financiera
Exterior - Madeira 4,650,000.00 1,550,000.00
Centrobanca - Banca di Credito Finanziario e
Mobiliare S.p.A. 4,650,000.00 1,550,000.00
Commerzbank Aktiengesellschaft, Sucursal en
Espana 4,650,000.00 1,550,000.00
JP Morgan Bank, S.A. 4,650,000.00 1,550,000.00
Lloyds TSB Bank plc, Sucursal en Espana 4,650,000.00 1,550,000.00
- ---------------------------------------------------------------------------------------------------------------
TOTALS 150,000,000.00 100,000,000.00 19,308,000,000.00
- ---------------------------------------------------------------------------------------------------------------
SCHEDULE 2
CONDITIONS PRECEDENT
Part I
Conditions Precedent to initial Utilisation
1. Obligors
(a) A copy of the constitutional documents of each Obligor.
(a) A power of attorney granting a specific individual or
individuals sufficient power to sign the Finance Documents on
behalf of the Borrower and a copy of a resolution of the
board of directors of each Original Guarantor:
(i) approving the terms of, and the transactions
contemplated by, the Finance Documents to which it
is a party and resolving that it execute the Finance
Documents to which it is a party;
(ii) authorising a specified person or persons to execute
the Finance Documents to which it is a party on its
behalf; 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 the Finance Documents to which
it is a party.
(b) A specimen of the signature of each person authorised by the
resolution or power of attorney referred to in paragraph (b)
above.
(c) 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 or similar limit binding on
any Obligor to be exceeded.
(d) A certificate of an Authorised Signatory of the relevant
Obligor certifying that each copy document relating to it
specified in this Part I of 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) An opinion with respect to the laws and regulations of
England from Clifford Chance, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(b) An opinion with respect to the laws and regulations of the
Kingdom of Spain from Clifford Chance, substantially in the
form distributed to the Original Lenders prior to signing
this Agreement.
(c) An opinion with respect to the laws and regulations of The
Netherlands from Clifford Chance, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(d) An opinion from in-house counsel of the Borrower,
substantially in the form distributed to the Original Lenders
prior to signing the Agreement.
3. Other documents and evidence
(a) Evidence that any process agent referred to in Clause 38.2
(Service of process) has accepted its appointment.
(b) The Original Financial Statements of each Obligor.
(c) A copy of form PE-1 stamped by the Bank of Spain (Banco de
Espana), whereby it assigns a Financial Operation Number
("NOF") to the Facility.
Part II
Conditions Precedent required to be delivered by an Additional Guarantor
1. Obligors
(a) An Accession Letter, duly executed by the Additional
Guarantor and the Borrower.
(b) A copy of the constitutional documents of the Additional
Guarantor.
(c) A copy of a resolution of the board of directors of the
Additional Guarantor:
(i) approving the terms of, and the transactions
contemplated by, the Accession Letter and this
Agreement and resolving that it execute the
Accession Letter;
(ii) authorising a specified person or persons to execute
the Accession Letter on its behalf; 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.
(d) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (c) above.
(e) Should the legal advisers of the Lenders consider it
advisable, a copy of a resolution signed by all the holders
of the issued shares of the Additional Guarantor, approving
the terms of, and the transactions contemplated by, the
Finance Documents to which the Additional Guarantor is a
party.
(f) A certificate of the Additional Guarantor (signed by an
Authorised Signatory) confirming that guaranteeing the Total
Commitments would not cause any guaranteeing or similar limit
binding on it to be exceeded.
(g) A certificate of an Authorised Signatory of the Additional
Guarantor certifying that each copy document listed in this
Part II of Schedule 2 is correct, complete and in full force
and effect as at a date no earlier than the date of the
Accession Letter.
2. Legal opinion
(a) A legal opinion of the legal advisers to the Additional
Guarantor in form and substance reasonably satisfactory to
the legal advisers of the Lenders.
(b) A legal opinion of Clifford Chance, or other firm that can
opine for the Additional Guarantor if not Clifford Chance,
legal advisers to the Lenders.
3. Other documents and evidence
(a) Evidence that any process agent referred to in Clause 38.2
(Service of process) has accepted its appointment.
(b) A copy of any other Authorisation or other document, opinion
or assurance which the Agent considers (after having taken
appropriate legal advice) to be necessary or desirable (if it
has notified the Additional Guarantor and the Borrower
accordingly) in connection with the entry into and
performance of the transactions contemplated by any Finance
Document or for the validity and enforceability of any
Finance Document.
(c) The Original Financial Statements of the Additional
Guarantor.
SCHEDULE 3
REQUESTS
Part I
Utilisation Request
From: Cemex Espana, S.A.
To: Banco Bilbao Vizcaya Argentaria, S.A.
Dated:
Dear Sirs
Cemex Espana, S.A. - EUR 250,000,000 and (Y) 19,308,000,000 Facilities
Agreement dated 30 March 2004 (the "Agreement")
1. We refer to the Agreement. This is a Utilisation Request. Terms
defined in the Agreement have the same meaning in this Utilisation
Request unless given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business
Day, the next Business Day)
Facility to be utilised: [Facility A]/[Facility B]/[Facility C]*
Currency of Loan: [ ]
Amount: [ ] or, if less, the Available
Facility
Interest Period: [ ]
3. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Utilisation
Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
................................
authorised signatory for
Cemex Espana, S.A.
* delete as appropriate
Part II
Selection Notice
Applicable to the Facility A Loan
From: Cemex Espana, S.A.
To: Banco Bilbao Vizcaya Argentaria, S.A.
Dated:
Dear Sirs
Cemex Espana, S.A. - EUR 250,000,000 and (Y) 19,308,000,000 Facilities
Agreement dated 30 March 2004 (the "Agreement")
1. We refer to the Agreement. This is a Selection Notice. Terms defined
in the Agreement have the same meaning in this Selection Notice unless
given a different meaning in this Selection Notice.
2. We refer to the Facility A Loan in [identify currency] with an
Interest Period ending on [ ]*.
3. We request that the next Interest Period for the Facility A Loan is
[ ].
4. We request that the Facility A Loan is [denominated in the same
currency for the next Interest Period]/[denominated in the following
currencies: [ ]. As this results in a change of currency we
confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Selection Notice. The
proceeds of any change in currency should be credited to [account].] .
5. This Selection Notice is irrevocable.
Yours faithfully
.....................................
authorised signatory for
Cemex Espana, S.A.
- --------------
* Insert details of the Facility A Loan.
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the
Financial Services Authority (or any other authority which replaces
all or any of its functions) or (b) the requirements of the European
Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) each Lender shall calculate, as a percentage rate, a rate
(the "Additional Cost Rate"), in accordance with the paragraphs set
out below. The Mandatory Cost will be a weighted average of the
Lenders' Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will
be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by
that Lender to the Agent. This percentage will be certified by that
Lender in its notice to the Agent to be its reasonable determination
of the cost (expressed as a percentage of that Lender's participation
in all Loans made from that Facility Office) of complying with the
minimum reserve requirements of the European Central Bank in respect
of loans made from that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be calculated by the relevant Lender as
follows:
Ex 0.01
----------- per cent. per annum.
300
Where:
E is designed to compensate Lenders for amounts payable under the
Fees Rules and is calculated by the relevant Lender as being the
average of the most recent rates of charge supplied by the
Reference Banks to the relevant Lender pursuant to paragraph 6
below and expressed in pounds per (pound)1,000,000.
5. For the purposes of this Schedule:
(a) "Fees Rules" means the rules on periodic fees contained in the
FSA Supervision Manual or such other law or regulation as may be
in force from time to time in respect of the payment of fees for
the acceptance of deposits;
(b) "Fee Tariffs" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any
minimum fee or zero rated fee required pursuant to the Fees
Rules but taking into account any applicable discount rate); and
(c) "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. If requested by a Lender, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority,
supply to such Lender, the rate of charge payable by that Reference
Bank to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being
the average of the Fee Tariffs applicable to that Reference Bank for
that financial year) and expressed in pounds per (pound)1,000,000 of
the Tariff Base of that Reference Bank.
7. The rates of charge of each Reference Bank for the purpose of E above
shall be determined by the relevant Lender based upon the information
supplied to it pursuant to paragraph 6 above.
8. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided
by any Lender or Reference Bank pursuant to paragraphs 3 and 6 above
is true and correct in all respects.
9. The Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each
Lender and each Reference Bank pursuant to paragraphs 3 and 6 above.
10. Any determination by a Lender pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
11. The Agent may from time to time, if so requested by any Lender, notify
to all Parties any amendments which are required by such Lender to be
made to this Schedule in order to comply with any change in law or
regulation or any requirements from time to time imposed by the
Financial Services Authority or the European Central Bank (or, in any
case, any other authority which replaces all or any of its functions).
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: Banco Bilbao Vizcaya Argentaria, S.A. as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender]
(the "New Lender")
Dated:
Cemex Espana, S.A. - EUR 250,000,000 and (Y) 19,308,000,000 Facilities
Agreement dated 30 March 2004 (the "Agreement")
1. We refer to the Agreement. This is a Transfer Certificate. Terms
defined in the Agreement have the same meaning in this Transfer
Certificate unless given a different meaning in this Transfer
Certificate.
2. We refer to Clause 24.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing
Lender transferring to the New Lender by novation all or part
of the Existing Lender's Commitment, rights and obligations
referred to in the Schedule in accordance with Clause 24.5
(Procedure for transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention
details for notices of the New Lender for the purposes of
Clause 31.2 (Addresses) are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 24.4
(Limitation of responsibility of Existing Lenders).
4. This Transfer Certificate 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 Transfer Certificate.
5. This Transfer Certificate is governed by English law.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices
and account details for payments,]
[Existing Lender] [New Lender]
By: By:
SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: Banco Bilbao Vizcaya Argentaria, S.A. as Agent
From: Cemex Espana, S.A.
Dated:
Dear Sirs
Cemex Espana, S.A. - EUR 250,000,000 and (Y) 19,308,000,000 Facilities
Agreement dated 30 March 2004 (the "Agreement")
1. We refer to the Agreement. This is a Compliance Certificate. Terms
defined in the Agreement have the same meaning when used in this
Compliance Certificate unless given a different meaning in this
Compliance Certificate.
2. We confirm that:
(a) Pursuant to Clause 21.2 (Financial condition) the financial
condition of the Group as of [ ] evidenced by the
consolidated financial statements for the financial
year/first half/second half of the financial year then ended
comply with the following conditions:
(i) Net Borrowings EUR ______________ ("A")
comprising EUR [Guarantees]
EUR [Off-Balance-Sheet Transactions]
EUR [Financial Indebtedness]
EUR [Liquid Investments]
Adjusted EBITDA
comprising:
EUR [operating profit]
EUR [annual depreciation for fixed assets]
EUR [annual amortisation of intangible assets]
EUR [annual amortisation of start-up costs of the
Group]
EUR [dividends received from non-consolidated
companies]
EUR [dividends received from companies consolidated
by the equity method]
EUR [Cemex Capital Contributions]
EUR [acquired business (i) operating income and (ii)
depreciation and amortisation expense]
EUR ______________ ("B")
A:B to be less than or equal to 3.5:1
(ii) EBITDA EUR ______________ ("B")
Finance Charges
comprising EUR [interest expenses]
EUR [other expenses]
EUR ______________ ("C")
B:C to be greater than or equal to 3:1
(b) As at the date of this Certificate the following Subsidiaries
of the Group fall within the definition of Material
Subsidiaries as set out in Clause 1.1 (Definitions):
3. We confirm that no Default is continuing.
Signed: ........................................
Authorised Signatory
of
Cemex Espana, S.A.
[insert applicable certification language]
.........................................
for and on behalf of
[name of auditors of the Borrower]
SCHEDULE 7
EXISTING SECURITY
Company Lender Security Total Principal Amount of
Indebtedness Secured as
of 31 December 2003
(millions of euro)
CEMEX Construction Materials, L.P. Navistar Financial Equipment related 1.08
with the Credit
CEMEX Construction Materials, L.P. GE Capital 7964, 8069 Equipment related 0.93
with the Credit
CEMEX Construction Materials, L.P. City of Long Beach Cement Terminal 7.77
(Capital Lease
Obligation)
CEMEX Construction Materials, L.P. Hampton Land related with the 0.25
Credit
CEMEX Construction Materials, L.P. RIO Land related with the 3.97
credt
CEMEX Construction Materials, L.P. Met-South, Inc. Ash storage facility 0.18
-------------
14.18
SCHEDULE 8
EXISTING NOTARISATIONS
Type of Agreement Borrower/Guarantor Maturity Date Total Principal
Amount of
Indebtedness
notarised as
of 31
December 2003
Bilateral lines Cemex Espana S.A./n.a. Between Jan. 2004 and Dec. EUR 55,593,620 (1) (2)
2005
Deferred purchase price Aricemex S.A./n.a. July, 2005 EUR 961,619
5-year term loan Cementos Diamante/ Cemex October 19th, 2004 US$ 37,172,250
Espana S.A.
(1) Corresponds to the total committed amount under
the facilities. Amount drawn as of 12.31.03: EUR 25,897,210
(2) EUR 4,507,591 matured in January 14, 2004.
SCHEDULE 9
LMA FORM OF cONFIDENTIALITY uNDERTAKING
[Letterhead of Seller/Seller's agent/broker]
To:
===========================
[insert name of Potential
Purchaser/Purchaser's agent/broker]
===========================
Re: The Agreement
===========================
Borrower:
Date:
Amount:
Agent:
===========================
Dear Sirs
We understand that you are considering [acquiring]/[arranging the acquisition
of] an interest in the Agreement (the "Acquisition"). In consideration of us
agreeing to make available to you certain information, by your signature of a
copy of this letter you agree as follows:
1. Confidentiality Undertaking
You undertake (a) to keep the Confidential Information confidential
and not to disclose it to anyone except as provided for by paragraph 2
below and to ensure that the Confidential Information is protected
with security measures and a degree of care that would apply to your
own confidential information, (b) to use the Confidential Information
only for the Permitted Purpose, (c) to use all reasonable endeavours
to ensure that any person to whom you pass any Confidential
Information (unless disclosed under paragraph 2[(c)/(d)] below)
acknowledges and complies with the provisions of this letter as if
that person were also a party to it, and (d) not to make enquiries of
any member of the Group or any of their officers, directors, employees
or professional advisers relating directly or indirectly to the
Acquisition.
2. Permitted Disclosure
We agree that you may disclose Confidential Information:
(a) to members of the Purchaser Group and their officers,
directors, employees and professional advisers to the extent
necessary for the Permitted Purpose and to any auditors of
members of the Purchaser Group;
(b) [subject to the requirements of the Agreement, in accordance
with the Permitted Purpose so long as any prospective
purchaser has delivered a letter to you in equivalent form to
this letter;]
[(b/c)] subject to the requirements of the Agreement, to any person
to (or through) whom you assign or transfer (or may
potentially assign or transfer) all or any of the rights,
benefits and obligations which you may acquire under the
Agreement or with (or through) whom you enter into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, the Agreement or the Borrower or any member
of the Group in each case so long as that person has
delivered a letter to you in equivalent form to this letter;
and
[(c/d)] (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where required by the
rules of any stock exchange on which the shares or other
securities of any member of the Purchaser Group are listed or
(iii) where required by the laws or regulations of any
country with jurisdiction over the affairs of any member of
the Purchaser Group.
3. Notification of Required or Unauthorised Disclosure
You agree (to the extent permitted by law) to inform us of the full
circumstances of any disclosure under paragraph 2[(c)/(d)]3 or upon
becoming aware that Confidential Information has been disclosed in
breach of this letter.
4. Return of Copies
If we so request in writing, you shall return all Confidential
Information supplied to you by us and destroy or permanently erase all
copies of Confidential Information made by you and use all reasonable
endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such
Confidential Information and any copies made by them, in each case save
to the extent that you or the recipients are required to retain any
such Confidential Information by any applicable law, rule or regulation
or by any competent judicial, governmental, supervisory or regulatory
body or in accordance with internal policy, or where the Confidential
Information has been disclosed under paragraph 2[(c)/(d)]3 above.
5. Continuing Obligations
The obligations in this letter are continuing and, in particular, shall
survive the termination of any discussions or negotiations between you
and us. Notwithstanding the previous sentence, the obligations in this
letter shall cease (a) if you become a party to or otherwise acquire
(by assignment or sub-participation) an interest, direct or indirect,
in the Agreement or (b) twelve months after you have returned all
Confidential Information supplied to you by us and destroyed or
permanently erased all copies of Confidential Information made by you
(other than any such Confidential Information or copies which have been
disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or
which, pursuant to paragraph 4 above, are not required to be returned
or destroyed).
6. No Representation; Consequences of Breach, etc
You acknowledge and agree that:
(a) neither we, [nor our principal] nor any member of the Group
nor any of our or their respective officers, employees or
advisers (each a "Relevant Person") (i) make any
representation or warranty, express or implied, as to, or
assume any responsibility for, the accuracy, reliability or
completeness of any of the Confidential Information or any
other information supplied by us or the assumptions on which
it is based or (ii) shall be under any obligation to update
or correct any inaccuracy in the Confidential Information or
any other information supplied by us or be otherwise liable
to you or any other person in respect to the Confidential
Information or any such information; and
(b) we [or our principal] or members of the Group may be
irreparably harmed by the breach of the terms hereof and
damages may not be an adequate remedy; each Relevant Person
may be granted an injunction or specific performance for any
threatened or actual breach of the provisions of this letter
by you.
7. No Waiver; Amendments, etc
This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject
of this letter. No failure or delay in exercising any right, power or
privilege hereunder will operate as a waiver thereof nor will any
single or partial exercise of any right, power or privilege preclude
any further exercise thereof or the exercise of any other right, power
or privileges hereunder. The terms of this letter and your obligations
hereunder may only be amended or modified by written agreement between
us.
8. Inside Information
You acknowledge that some or all of the Confidential Information is or
may be price-sensitive information and that the use of such information
may be regulated or prohibited by applicable legislation relating to
insider dealing and you undertake not to use any Confidential
Information for any unlawful purpose.
9. Nature of Undertakings
The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also given
for the benefit of [our principal,]4 the Borrower and each other member
of the Group.
10. Third Party Rights
(a) Subject to this paragraph 10 and to paragraphs 6 and 9, a
person who is not a party to this letter has no right under
the Contracts (Rights of Third Parties) Act 1999 (the "Third
Parties Act") to enforce or to enjoy the benefit of any term
of this letter.
(b) The Relevant Persons may enjoy the benefit of the terms of
paragraphs 6 and 9 subject to and in accordance with this
paragraph 10 and the provisions of the Third Parties Act.
(c) The parties to this letter do not require the consent of the
Relevant Persons to rescind or vary this letter at any time.
11. Governing Law and Jurisdiction
(a) This letter (including the agreement constituted by your
acknowledgement of its terms) is governed by English law.
(b) The parties submit to the non-exclusive jurisdiction of the
English courts.
12. Definitions
In this letter (including the acknowledgement set out below) terms
defined in the Agreement shall, unless the context otherwise requires,
have the same meaning and:
"Confidential Information" means any information relating to the
Borrower, the Group, the Agreement and/or the Acquisition provided to
you by us or any of our affiliates or advisers, in whatever form, and
includes information given orally and any document, electronic file or
any other way of representing or recording information which contains
or is derived or copied from such information but excludes information
that (a) is or becomes public knowledge other than as a direct or
indirect result of any breach of this letter or (b) is known by you
before the date the information is disclosed to you by us or any of our
affiliates or advisers or is lawfully obtained by you thereafter, other
than from a source which is connected with the Group and which, in
either case, as far as you are aware, has not been obtained in
violation of, and is not otherwise subject to, any obligation of
confidentiality;
"Group" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as
each such term is defined in the Companies Act 1985);
"Permitted Purpose" means [subject to the terms of this letter, passing
on information to a prospective purchaser for the purpose of]2
considering and evaluating whether to enter into the Acquisition; and
"Purchaser Group" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985).
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
....................
For and on behalf of
[Seller/Seller's agent/broker]
To: [Seller]
[Seller's agent/broker]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
...........................
For and on behalf of
[Potential Purchaser/Purchaser's agent/broker]
SCHEDULE 10
TIMETABLES
Loans in euro Loans in other currencies
Delivery of a duly completed Utilisation Request U-3 U-3
(Clause 5.1 (Delivery of a Utilisation Request)) or
a Selection Notice (Clause 10.1 (Selection of 11.30am 11.30am
Interest Periods))
Agent determines (in relation to a Utilisation) the U-3 U-3
Base Currency Amount or yen amount of the Loan, if
required under Clause 5.4 (Lenders' participation) 2.30pm 2.30pm
Agent notifies the Lenders of the Loan in U-3 U-3
accordance with Clause 5.4 (Lenders' participation)
4.30pm 4.30pm
Agent receives a notification from a Lender under U-3 U-3
Clause 6.2 (Unavailability of a currency) as of 5.00pm as of 5.00pm
Agent gives notice in accordance with Clause 6.2 U-3 U-3
(Unavailability of a currency) as of 5.30pm as of 5.30pm
Agent determines amount of the Loan in Optional U-3 U-3
Currency in accordance with Clause 6.3 (Change of as of 2.30pm as of 2.30pm
currency)
Agent determines amount of the Facility A Loan in U-3 U-3
Optional Currency in accordance with Clause 6.4 as of 2.30pm as of 2.30pm
(Same Optional Currency during successive
Interest Periods)
Agent determines amount of the Facility A Loan U-3 U-3
in Optional Currency converted into Base as of 2.30pm as of 2.30pm
Currency in accordance with paragraph (b)
of Clause 6.4 (Same Optional Currency
during successive Interest Periods)
LIBOR or EURIBOR is fixed Quotation Day as Quotation Day as of
of 11:00 a.m. 11:00 a.m.
London time in
respect of LIBOR
and as of 11.00
a.m. Brussels
time in respect
of EURIBOR
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
SCHEDULE 11
FORM OF ACCESSION LETTER
To: Banco Bilbao Vizcaya Argentaria, S.A. as Agent
From: [Additional Guarantor] and Cemex Espana, S.A.
Dated:
Dear Sirs
Cemex Espana, S.A. - EUR 250,000,000 and (Y) 19,308,000,000 Facilities
Agreement dated 30 March 2004 (the "Agreement")
1. [Additional Guarantor] agrees to become an Additional
Guarantor and to be bound by the terms of the Facility
Agreement as an Additional Guarantor pursuant to Clause 25
(Changes to the Obligors) of the Facility Agreement.
[Additional Guarantor] is a company duly incorporated under
the laws and regulations of [name of relevant jurisdiction].
2. (0)Additional Guarantor's] administrative details are as
follows:
Address:
Fax No:
Attention:
3. This Accession Letter is governed by English law and is
entered into by deed.
[Additional Guarantor] Cemex Espana, S.A.
SCHEDULE 12
MATERIAL SUBSIDIARIES
Cemex Inc.
Cemex Corp.
Cemex Venezuela SACA
Vencement Investments
Construction Fund Corporation
SCHEDULE 13
DEFINING THE JPY FIX RATE
1. Defining the JPY Fix Rate
(a) Defining the five year Japanese Yen fix rate in the case the
five year swap spread between bid and ask is 3 (three) basis
points.
Add to Mid-market of five year Japanese swap rate shown on the
"ICAP1" Reuters screen 5 (five) basis points. This calculation
should take place on April 13 2004 (for a swap from 15 April
2004 to 30 March 2009) at or about 10 a.m. Madrid time. The
result of this procedure will be the five year Japanese Yen
fix rate for Facility C.
If the "ICAP1" Reuters screen is not showing a market value at
that moment, then there would be a delay of 10 to 15 minutes,
assuming that "ICAP1" corrects its quotation.
If after 10:15 a.m. Madrid time on 13 April 2004, the "ICAP1"
Reuters screen is still showing a non market quotable rate,
then the five year Japanese swap rate shown on the "ICAP1"
Reuters screen will be replaced in accordance with the
following procedure:
Ask for a quotation of a mid-market value of the reference
transaction from the London offices of the following 3 (three)
banks:
(i) Deutsche Bank AG
(ii) Barclays Bank PLC
(iii) Credit Agricole Indosuez
The average of the 3 (three) quotes from the banks will be
the Mid-market of five year Japanese swap rate that will
apply.
(b) Defining the five year Japanese Yen fix rate in the case the
five year swap spread between bid-ask is more than 3 (three)
basis points.
If the five year swap spread between bid-ask on 13 April 2004
is more than 3 (three) basis points, the Borrower will have
the option of waiting until it comes back to 3 (three) basis
points (until 28 April 2004 at the latest), in which case the
calculation method described in "(a)" above will apply, or,
alternatively, to opt for the following calculation method:
Add to the offer side of the five year Japanese swap rate
shown on the "ICAP1" Reuters screen 3.5 (three and a half)
basis points. This calculation should take place at or about
10 a.m. Madrid time. The result of this procedure will be the
five year Japanese Yen fix rate for Facility C.
If the "ICAP1" Reuters screen is not showing a market value
at that moment, then there would be a delay of 10 to 15
minutes, assuming that "ICAP1" corrects its quotation. If
after 10:15 a.m. Madrid time on 28 April 2004 the "ICAP1"
Reuters screen is still showing a non market quotable rate,
then the five year Japanese swap rate shown on the "ICAP1"
Reuters screen will be replaced in accordance with the
following procedure:
Ask for a quotation of an offer value for the reference
transaction from the London offices of the following 3
(three) banks:
(i) Deutsche Bank AG
(ii) Barclays Bank PLC
(iii) Credit Agricole Indosuez
The five year Japanese swap rate will be the average of the 3
(three) quotes from the banks.
In any event, if the bid-ask spread remains above 3 (three)
basis points during the full period 13 April 2004 - 28 April
2004, the calculation method described in "(b)" will have to
apply on 28 April 2004.
2. Definitions
"Mid-market" means the average of the bid and the offer.
3. Calculations
All calculations described in this schedule shall be made by the
treasury departments of the Borrower and all of the Facility C Lenders
together.
SIGNATURES
THE BORROWER
CEMEX ESPANA, S.A.
By: PILAR RUIZ
Address: Hernandez de Tejada, 1, 28027 Madrid, Spain
Fax: +34 91 377 94 94/+34 91 353 63 50
Attention: Hector Campa Martinez
THE ORIGINAL GUARANTORS
CEMEX CARACAS INVESTMENTS B.V.
By: PILAR RUIZ
Address: Hernandez de Tejada, 1, 28027 Madrid, Spain
Fax: +34 91 377 94 94/+34 91 353 63 50
Attention: Hector Campa Martinez
CEMEX CARACAS II INVESTMENTS B.V.
By: PILAR RUIZ
Address: Hernandez de Tejada, 1, 28027 Madrid, Spain
Fax: +34 91 377 94 94/+34 91 353 63 50
Attention: Hector Campa Martinez
CEMEX EGYPTIAN INVESTMENTS B.V.
By: PILAR RUIZ
Address: Hernandez de Tejada, 1, 28027 Madrid, Spain
Fax: +34 91 377 94 94/+34 91 353 63 50
Attention: Hector Campa Martinez
CEMEX MANILA INVESTMENTS B.V.
By: PILAR RUIZ
Address: Hernandez de Tejada, 1, 28027 Madrid, Spain
Fax: +34 91 377 94 94/+34 91 353 63 50
Attention: Hector Campa Martinez
SANDWORTH PLAZA HOLDING B.V.
By: PILAR RUIZ
Address: Hernandez de Tejada, 1, 28027 Madrid, Spain
Fax: +34 91 377 94 94/+34 91 353 63 50
Attention: Hector Campa Martinez
THE AGENT
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
By: ALVARO BAREZ/JOSE MARIA SAGARDOY
Address: Via de los Poblados s/n - 4(a)planta, 28033 Madrid, Spain
Fax: +34 91 374 41 40
Attention: Jose Luis Madrid Lopez/Juan Ramon Arcos Sanz
THE ARRANGER
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
By: ALVARO BAREZ/JOSE MARIA SAGARDOY
Address: Via de los Poblados s/n - 4(a)planta, 28033 Madrid, Spain
Fax: +34 91 374 41 40
Attention: Jose Luis Madrid Lopez/Juan Ramon Arcos Sanz
SOCIETE GENERALE, S.A.
By: ALVARO COROMINAS/JOSE ANTONIO OLANO
Address: 17, cours Valmy, 92972 Paris la Defense Cedex, France
Fax: +33 1 42 14 09 45
Attention: Sylvie Le Tensorer
THE ORIGINAL LENDERS
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By: ALVARO BAREZ/JOSE MARIA SAGARDOY
Address: Via de los Poblados s/n - 4(a)planta, 28033 Madrid, Spain
Fax: +34 91 374 41 40
Attention: Jose Luis Madrid Lopez/Juan Ramon Arcos Sanz
SOCIETE GENERALE, S.A.
By: ALVARO COROMINAS/JOSE ANTONIO OLANO
Address: 17, cours Valmy, 92972 Paris la Defense Cedex, France
Fax: +33 1 42 14 09 45
Attention: Sylvie Le Tensorer
BANCO ESPANOL DE CREDITO, S.A.
By: EDURNE URIBE/JOSE VILLANUEVA
Address: Gran Via de Hortaleza 3, 28033 Madrid, Spain
Fax: + 34 91 338 28 88
Attention: Antonio Sanchez / Carolina Fernandez Iniesta
BANCO SANTANDER CENTRAL HISPANO, S.A
By: JAVIER VISEDO/CARLOS DE PEDROSO
Address: Paseo de la Castellana 75, 28046 Madrid, Spain
Fax: +91 342 37 63
Attention: Daniel Esteve
BNP PARIBAS, SUCURSAL EN ESPANA
By: JOSE GEFAELL/CARMEN PINO
Address: Avda. Ribera del Loira 28, 28042 Madrid, Spain
Fax: +91 388 80 25
Attention: Jose Gefaell
CITIBANK INTERNATIONAL PLC, SUCURSAL EN ESPANA
By: FELIX AGUIRRE
Address: c/ Jose Ortega y Gasset 29, 28006 Madrid, Spain
Fax: +34 435 28 11
Attention: Pedro Lopez-Quesada / Miguel Trueba
HSBC BANK PLC, SUCURSAL EN ESPANA
By: PETER ATKINS
Address: Plaza Pablo Ruiz de Picasso 1, planta 33, Edificio Torre
Picasso, 28020 Madrid, Spain
Fax: +34 91 456 61 40
Attention: Esther de Alba / Luis Vegue
ING BELGIUM S.A., SUCURSAL EN ESPANA
By: EDWARD O'LOGHLEN VELICIA/ENRIQUE MARQUINA PEREZ
Address: Paseo de la Castellana 95, planta 14, 28046 Madrid, Spain
Fax: +34 91 598 40 01
Attention: Edward O'Loghlen Velicia
THE ROYAL BANK OF SCOTLAND PLC
By: CARMEN ALLO PEREZ/ANTONIO CASTELEIRO DE TORRES
Address: 36 St. Andrew Square, Edinburgh EH2 2YB, Scotland
Fax: +34 91 701 53 07
Attention: Antonio Casteleiro / Javier Figar
BANCO DE GALICIA, S.A.
By: ANTONIO CARLOS GONZALEZ GARCIA/SILVIA FERNANDEZ HERNANDEZ
Address: c/ Policarpo Sanz n(0) 23, Vigo, Spain
Fax: +34 91 578 29 31
Attention: Arantxa Zabal Ibisate
BANCO DE SABADELL, S.A.
By: ISABEL COROMINAS GUERIN/DAVID NOGUERA BALLUS
Address: Plaza Catalunya 1, 08201 Sabadell, Spain
Fax: +34 93 591 60 22
Attention: Enrique Oriol Bitaube
BANK OF AMERICA N.A., SUCURSAL EN ESPANA
By: VICENTE BEULLOCH FERNANDEZ CUESTA/TERESA DIAZ ARIAS
Address: Paseo de la Castellana 35, 3(a) planta, 28046 Madrid, Spain
Fax: +34 396 51 23
Attention: Carlos Karam
CAIXA D'ESTALVIS DE CATALUNYA
By: AGUSTI FAUS RIERA
Address: Pl. Antoni Maura 6, 08003 Barcelona, Spain
Fax: +34 93 484 51 76
Attention: Carmelo Sanchez-Herrera / Belen Borque
CAJA MADRID
By: PALOMA MATEO CUELLAR/JOSE LUIS GARCIA PEREZ
Address: Paseo de la Castellana 189, 28046 Madrid, Spain
Fax: +34 91 423 97 16
Attention: Paloma Mateo
FORTIS BANK, S.A. SUCURSAL EN ESPANA
By: AGUSTIN JIMENEZ DE PARGA/IGNACIO GOROSTIZA SANTIESTEBAN
Address: Ortega y Gasset 29, 28006 Madrid
Fax: +34 91 432 67 34
Attention:
NATEXIS BANQUES POPULAIRES, SUCURSAL EN ESPANA
By: JOSE LUIS SANCHEZ GARCIA/FREDERIC MARECHAUX
Address: Paseo de Recoletos 7-9, 28004 Madrid, Spain
Fax: +34 91 837 47 80
Attention: Jose Luis Sanchez / Padro Aragones
WESTLB IRELAND PLC
By: TERRY KELLY/TRUDY TUGWELL
Address: IFSC House, I.F.S.C., Dublin 1, Ireland
Fax: +353 1 612 71 10
Attention: Terry Kelly / Gabriele Hess / Trudy Tugwell
BANCO SIMEON, S.A.
By: MANUEL ANGEL YAGUES VEGA/RICARDO OTEO VAZQUEZ
Address: Calle Maria de Molina 39, 28006 Madrid, Spain
Fax: +34 91 309 90 28
Attention: Manuel Angel Yagues Vega
ABN AMRO, N.V., SUCURSAL EN ESPANA
By: IGNACIO MADURGA/EMILIO GOMEZ
Address: c/ Jose Ortega y Gasset 29, 28006 Madrid, Spain
Fax: +34 91 423 69 48
Attention: Ignacio Madurga
BANCA DI ROMA SpA, SUCURSAL EN ESPANA
By: JOAQUIN CALVO-SOTELO/MARIO CAMPANA
Address: Plaza Pablo Ruiz Picasso 1, Torre Picasso planta 42,
28020 Madrid, Spain
Fax: +34 91 555 05 03
Attention: Joaquin Calvo-Sotelo
BANCO ATLANTICO, S.A.
By: JOSE RAMON MONTANO RUIZ/MARIA DEL CARMEN COMPANY BARAHONA
Address: Gran Via 46, 28013 Madrid, Spain
Fax: +34 91 559 32 76
Attention: Carlos Izcue Cuella
BANCO DE VALENCIA, S.A.
By: FRANCISCO JAVIER CHIVATO PEREZ/JUAN CARLOS CALDES MOORE
Address: Principe de Vergara 95, 28006 Madrid, Spain
Fax: +34 91 562 22 13
Attention: Francisco Javier Chivato Perez
BANCO ITAU EUROPA S.A., SUCURSAL FINANCIERA EXTERIOR - MADEIRA
By: ALMIR VIGNOTO/RITA CORREIA DE CAMPOS
Address: Av. Arriaga 77, 2(a)sala 201, 9000-060 Funchal, Madeira,
Portugal
Fax: +351 291 241 514
Attention: Rita Correla de Campos
CENTROBANCA - BANCA DI CREDITO FINANZIARIO E MOBILIARE S.P.A.
By: DANIELLE QUARTIERI
Address: Corso Europa n. 16, 20122 Milan, Italy
Fax: +39 2 7781 42 35
Attention: Daniele Quartieri
COMMERZBANK AKTIENGESELLSCHAFT, SUCURSAL EN ESPANA
By: RICARDO TEISSIERE/JORGE DE SEDANO
Address: Paseo de la Castellena 110, 28046 Madrid
Fax: +34 91 572 48 21
Attention: Jorge de Sedano Tarrancon
LLOYDS TSB BANK PLC, SUCURSAL EN ESPANA
By: JOSE MARIA CEMBORAIN GARCIA/SILVIA MANCY RICHOU
Address: c/ Serrano 90, 28006 Madrid
Fax: +34 91 431 47 31
Attention: Sylvie Mancy
JP MORGAN BANK, S.A.
By: CARLOS ZULOAGA/ROSA GARCIA
Address: C/Jose Ortega y Gasset, 29, 28006 Madrid
Fax: +34 91 516 1309/+34 91 516 1490/+1 646 534 0829
Attention: Carlos Zuloaga / Rosa Garcia / cc: Linda Meyer