Exhibit 4.11
CONFORMED COPY
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CEMEX ESPANA FINANCE LLC
$103,000,000 4.77% Senior Notes, Series 2003, Tranche 1, due 2010
$96,000,000 5.36% Senior Notes, Series 2003, Tranche 2, due 2013
$201,000,000 5.51% Senior Notes, Series 2003, Tranche 3, due 2015
_______________
NOTE PURCHASE AGREEMENT
_______________
Dated as of June 23, 2003
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TABLE OF CONTENTS
Page
1. AUTHORIZATION OF NOTES..................................................................................1
2. SALE AND PURCHASE OF NOTES..............................................................................1
3. CLOSING.................................................................................................2
4. CONDITIONS TO CLOSING...................................................................................2
4.1 Representations and Warranties.................................................................2
4.2 Performance; No Default........................................................................2
4.3 Compliance Certificates........................................................................3
4.4 Opinions of Counsel............................................................................3
4.5 Purchase Permitted By Applicable Law, etc......................................................3
4.6 Related Transactions...........................................................................4
4.7 Payment of Special Counsel Fees................................................................4
4.8 Private Placement Number.......................................................................4
4.9 Changes in Corporate Structure.................................................................4
4.10 Proceedings and Documents......................................................................4
4.11 Note Guarantee.................................................................................4
4.12 Agent for Service of Process...................................................................4
5. REPRESENTATIONS AND WARRANTIES OF CEMEX ESPANA AND THE COMPANY..........................................5
5.1 Organization; Power and Authority..............................................................5
5.2 Authorization, etc.............................................................................5
5.3 Disclosure.....................................................................................5
5.4 Organization and Ownership of Shares of Subsidiaries...........................................6
5.5 Financial Statements...........................................................................6
5.6 Compliance with Laws, Other Instruments, etc...................................................6
5.7 Governmental Authorizations, etc...............................................................7
5.8 Litigation; Observance of Agreements, Statutes and Orders......................................7
5.9 Taxes..........................................................................................7
5.10 Title to Property; Leases......................................................................8
5.11 Licenses, Permits, etc.........................................................................8
5.12 ERISA; Foreign Pension Plans...................................................................8
5.13 Private Offering by the Company................................................................9
5.14 Use of Proceeds; Margin Regulations............................................................9
5.15 Existing Financial Indebtedness; Future Liens.................................................10
5.16 Foreign Assets Control Regulations, Foreign Corrupt Practices Act, etc........................10
5.17 Status under Certain Statutes.................................................................10
5.18 Environmental Matters.........................................................................11
5.19 Pari Passu Obligations........................................................................11
6. REPRESENTATIONS OF THE PURCHASERS......................................................................11
6.1 Purchase for Investment.......................................................................11
6.2 Source of Funds...............................................................................12
7. INFORMATION AS TO CEMEX ESPANA AND THE COMPANY.........................................................13
7.1 Financial and Business Information............................................................13
7.2 Officer's Certificate.........................................................................15
7.3 Inspection....................................................................................16
7.4 Maintenance of Books and Records..............................................................16
8. MATURITY; PREPAYMENT OF THE NOTES......................................................................16
8.1 Stated Maturity...............................................................................16
8.2 Optional Prepayments with Make-Whole Amount...................................................17
8.3 Optional Prepayment of Notes for Tax Reasons..................................................17
8.4 Prepayment Upon Substantial Asset Disposition.................................................19
8.5 Allocation of Partial Prepayments.............................................................19
8.6 Maturity; Surrender, etc......................................................................20
8.7 Purchase of Notes.............................................................................20
8.8 Make-Whole Amount for Notes...................................................................20
8.9 Change in Control, Offer to Prepay, etc.......................................................21
9. AFFIRMATIVE COVENANTS..................................................................................23
9.1 Compliance with Law...........................................................................23
9.2 Insurance.....................................................................................23
9.3 Maintenance of Properties.....................................................................23
9.4 Payment of Taxes and Claims...................................................................23
9.5 Corporate Existence, etc......................................................................24
9.6 Pari Passu Obligations........................................................................24
10. NEGATIVE COVENANTS.....................................................................................24
10.1 Transactions with Affiliates..................................................................24
10.2 Merger, Consolidation, etc....................................................................25
10.3 Liens.........................................................................................26
10.4 Sales of Assets...............................................................................28
10.5 Financial Covenants...........................................................................29
10.6 Limitation on Non-Guarantor Financial Indebtedness............................................29
10.7 Notarization..................................................................................31
11. EVENTS OF DEFAULT......................................................................................32
12. REMEDIES ON DEFAULT, ETC...............................................................................34
12.1 Acceleration..................................................................................34
12.2 Other Remedies................................................................................35
12.3 Rescission....................................................................................35
12.4 No Waivers or Election of Remedies, Expenses, etc.............................................35
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES..........................................................36
13.1 Registration of Notes.........................................................................36
13.2 Transfer and Exchange of Notes................................................................36
13.3 Replacement of Notes..........................................................................36
14. PAYMENTS ON NOTES......................................................................................37
14.1 Place of Payment..............................................................................37
14.2 Home Office Payment...........................................................................37
14.3 Tax Indemnification...........................................................................37
14.4 Currency of Payment...........................................................................40
15. EXPENSES, ETC..........................................................................................40
15.1 Transaction Expenses..........................................................................40
15.2 Survival......................................................................................41
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT...........................................41
17. AMENDMENT AND WAIVER...................................................................................41
17.1 Requirements..................................................................................41
17.2 Solicitation of Holders of Notes..............................................................42
17.3 Binding Effect, etc...........................................................................42
17.4 Notes held by Company, etc....................................................................42
18. NOTICES................................................................................................42
19. REPRODUCTION OF DOCUMENTS..............................................................................43
20. CONFIDENTIAL INFORMATION...............................................................................44
21. SUBSTITUTION OF PURCHASER..............................................................................45
22. MISCELLANEOUS..........................................................................................45
22.1 Successors and Assigns........................................................................45
22.2 Payments Due on Non-Business Days.............................................................45
22.3 Severability..................................................................................45
22.4 Construction..................................................................................46
22.5 Counterparts..................................................................................46
22.6 Governing Law.................................................................................46
22.7 Jurisdiction; Service of Process..............................................................46
22.8 Judgment Currency.............................................................................48
Schedules
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Schedule A Information Relating to Purchasers
Schedule B Defined Terms
Schedule 4.9 Changes in Corporate Structure
Schedule 5.3 Disclosure Exceptions
Schedule 5.4 Subsidiaries (including identification of Material
Subsidiaries)
Schedule 5.5 Financial Statements
Schedule 5.8 Litigation
Schedule 5.11 License, etc. Exceptions
Schedule 5.15 Financial Indebtedness
Schedule 10.3 Existing Liens
Schedule 10.7 Existing Notarizations
Exhibits
Exhibit 1 Forms of Notes
Exhibit 4.4(a) Form of Opinion of Counsel to Cemex Espana
Exhibit 4.4(b) Form of Opinion of Special New York Counsel to the Obligors
Exhibit 4.4(c) Form of Opinion of Special Netherlands Counsel to the Obligors
Exhibit 4.4(d) Form of Opinion of Special US Counsel to the Purchasers
Exhibit 4.4(e) Form of Opinion of Special Spanish Counsel to the Purchasers
CEMEX ESPANA FINANCE LLC
c/o Cemex Espana, S.A.
Caleruega 67- 5(0)
28033 Madrid, Spain
4.77% Senior Notes, Series 2003, Tranche 1, due June 15, 2010
5.36% Senior Notes, Series 2003, Tranche 2, due June 15, 2013
5.51% Senior Notes, Series 2003, Tranche 3, due June 15, 2015
as of June 23, 2003
TO EACH OF THE PURCHASERS LISTED ON
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
CEMEX ESPANA, S.A., a corporation organized under the laws of the
Kingdom of Spain ("Cemex Espana"), and its wholly owned Subsidiary CEMEX ESPANA
FINANCE LLC, a limited liability company organized under the laws of Delaware
(the "Company"), agree with the Purchasers listed on the attached Schedule A
(the "Purchasers") to this Note Purchase Agreement (as amended, modified or
supplemented, this "Agreement") as follows:
1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of (i) $103,000,000
aggregate principal amount of its 4.77% Senior Notes, Series 2003, Tranche 1,
due June 15, 2010 (the "Tranche 1 Notes"), (ii) $96,000,000 aggregate principal
amount of its 5.36% Senior Notes, Series 2003, Tranche 2, due June 15, 2013
(the "Tranche 2 Notes") and (iii) $201,000,000 aggregate principal amount of
its 5.51% Senior Notes, Series 2003, Tranche 3, due June 15, 2015 (the "Tranche
3 Notes"; the Tranche 1 Notes, the Tranche 2 Notes and the Tranche 3 Notes are
collectively referred to herein as the "Notes", such term to include any such
notes issued in substitution therefor pursuant to Section 13 of this
Agreement). The Notes shall be substantially in the forms set out in Exhibit
1(a), Exhibit 1(b) and Exhibit 1(c), respectively, with such changes therefrom,
if any, as may be approved by the Purchasers and the Company. Certain
capitalized terms used in this Agreement are defined in Schedule B; references
to a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule
or an Exhibit attached to this Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company
will issue and sell to each Purchaser and each Purchaser will purchase from the
Company, at the Closing provided for in Section 3, Notes in the principal
amount and of the tranche(s) specified opposite such Purchaser's name on
Schedule A at the purchase price of 100% of the principal amount thereof. The
obligations of each Purchaser hereunder are several and not joint obligations
and no Purchaser shall have any liability to any other Person for the
performance or non-performance by any other Purchaser hereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by each Purchaser
shall occur at the offices of Mayer, Brown, Rowe & Maw, 1675 Broadway, New
York, New York 10019, at 10:00 a.m., New York time, at a closing (the
"Closing") on June 23, 2003 or on such other Business Day thereafter on or
prior to June 23, 2003 as may be agreed upon by the Company and the Purchasers.
At the Closing the Company will deliver to each Purchaser the Notes to be
purchased by such Purchaser in the form of a single Note (or such greater
number of Notes in denominations of at least $500,000 as such Purchaser may
request) dated the date of the Closing and registered in the name of such
Purchaser (or in the name of such Purchaser's nominee), against delivery by
such Purchaser to the Company or its order of immediately available funds in
the amount of the purchase price therefor by wire transfer of immediately
available funds for the account of the Company to Citibank, N.A., New York,
ABA:021000089 for further transfer to the credit of Cemex Espana Finance, LLC,
account USD:0011022014 held at Citibank International, PLC, Madrid Branch,
Swift: CITIESMX. If at the Closing the Company shall fail to tender such Notes
to any Purchaser as provided above in this Section 3, or any of the conditions
specified in Section 4 shall not have been fulfilled to any Purchaser's
reasonable satisfaction, such Purchaser shall, at such Purchaser's election, be
relieved of all further obligations under this Agreement, without thereby
waiving any rights such Purchaser may have by reason of such failure or such
nonfulfillment.
4. CONDITIONS TO CLOSING.
The obligation of each Purchaser to purchase and pay for the Notes to
be sold to it at the Closing is subject to the fulfillment to such Purchaser's
satisfaction, prior to or at the Closing, of the following conditions:
4.1 Representations and Warranties.
The representations and warranties of Cemex Espana and the Company in
this Agreement shall be correct when made and at the time of the Closing
(except for such representations and warranties made as of a specific earlier
date).
4.2 Performance; No Default.
Cemex Espana and the Company shall have performed and complied with
all agreements and conditions contained in this Agreement required to be
performed or complied with by them prior to or at the Closing, and after giving
effect to the issue and sale of the Notes (and the application of the proceeds
thereof as contemplated by Section 5.14) no Default or Event of Default shall
have occurred and be continuing. Neither Cemex Espana nor any Subsidiary shall
have entered into any transaction since the date of the Memorandum that would
have been prohibited by Section 10.1, 10.3 or 10.7 hereof had such Sections
applied since such date.
4.3 Compliance Certificates.
(a) Officer's Certificate. Each of Cemex Espana and the Company shall
have delivered to such Purchaser an Officer's Certificate, dated the date of
the Closing, certifying that the conditions specified in Sections 4.1, 4.2 and
4.9 have been fulfilled.
(b) Secretary's Certificate. Each of the Company, Cemex Espana and
each other Guarantor shall have delivered to such Purchaser a certificate,
signed by the Secretary of the manager of the Company, the Secretary of Cemex
Espana and one or more Managing Directors of the other Guarantors,
respectively, certifying as to the resolutions attached thereto and other
corporate proceedings taken by it relating to the authorization, execution and
delivery of the Financing Documents to which it is a party.
4.4 Opinions of Counsel.
Such Purchaser shall have received opinions in form and substance
satisfactory to it, dated the date of the Closing (a) from Juan Pelegri y
Giron, counsel for Cemex Espana, covering the matters set forth in Exhibit
4.4(a) and covering such other matters incident to the transactions
contemplated hereby as such Purchaser or such Purchaser's counsel may
reasonably request (and Cemex Espana and the Company hereby instruct such
counsel to deliver such opinion to such Purchaser), (b) from Mayer, Brown, Rowe
& Maw, special New York counsel to the Obligors, covering the matters set forth
in Exhibit 4.4(b) and covering such other matters incident to the transactions
contemplated hereby as such Purchaser or such Purchaser's counsel may
reasonably request (and Cemex Espana and the Company hereby instruct such
special counsel to deliver such opinion to such Purchaser), (c) from Clifford
Chance Limited Liability Partnership, special Netherlands counsel for each
Obligor that is organized in The Netherlands, covering the matters set forth in
Exhibit 4.4(c) and covering such other matters as such Purchaser or such
Purchaser's counsel may reasonably request (and Cemex Espana and the Company
hereby instruct such counsel to deliver such opinion to such Purchaser), (d)
from Latham & Watkins, the Purchasers' US special counsel in connection with
such transactions, substantially in the form set forth in Exhibit 4.4(d) and
covering such other matters incident to such transactions as such Purchaser may
reasonably request and (e) from Uria & Menendez, the Purchasers' Spanish
special counsel in connection with such transactions, substantially in the form
set forth in Exhibit 4.4(e) and covering such other matters incident to such
transactions as such Purchaser may reasonably request.
4.5 Purchase Permitted By Applicable Law, etc.
On the date of the Closing each purchase of Notes shall (i) be
permitted by the laws and regulations of each jurisdiction to which each
Purchaser is subject, without recourse to provisions (such as Section
1405(a)(8) of the New York Insurance Law) permitting limited investments by
insurance companies without restriction as to the character of the particular
investment, (ii) not violate any applicable law or regulation (including,
without limitation, Regulation T, U or X of the Board of Governors of the
Federal Reserve System) and (iii) not subject any Purchaser to any tax, penalty
or liability under or pursuant to any applicable law or regulation, which law
or regulation was not in effect on the date hereof. If requested by any
Purchaser, such Purchaser shall have received an Officer's Certificate
certifying as to such matters of fact as such Purchaser may reasonably specify
to enable such Purchaser to determine whether such purchase is so permitted.
4.6 Related Transactions.
The Company shall have consummated the sale of the entire principal
amount of the Notes scheduled to be sold on the date of Closing pursuant to
this Agreement.
4.7 Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company shall
have paid on or before the Closing the fees, charges and disbursements of the
Purchasers' special counsel referred to in Section 4.4 to the extent reflected
in a statement of such counsel rendered to the Company at least one Business
Day prior to the Closing.
4.8 Private Placement Number.
A Private Placement number issued by Standard & Poor's CUSIP Service
Bureau (in cooperation with the SVO) shall have been obtained for each tranche
of the Notes.
4.9 Changes in Corporate Structure.
Except as specified on Schedule 4.9, neither the Company nor Cemex
Espana nor any other Guarantor shall have changed its jurisdiction of
incorporation or been a party to any merger or consolidation and shall not
have succeeded to all or any substantial part of the liabilities of any other
entity, at any time following the date of the most recent financial statements
referred to on Schedule 5.5.
4.10 Proceedings and Documents.
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be reasonably satisfactory to such
Purchaser and the Purchasers' special counsel, and such Purchaser and the
Purchasers' special counsel shall have received all such counterpart originals
or certified or other copies of such documents as such Purchaser and the
Purchasers' special counsel may reasonably request.
4.11 Note Guarantee.
Cemex Espana and each other Guarantor shall have executed and
delivered to each Purchaser a counterpart of the Note Guarantee and the Note
Guarantee shall be in full force and effect.
4.12 Agent for Service of Process.
CT Corporation System shall have accepted its appointment by the
Company and each Guarantor as the agent for service of process for the Company
and each Guarantor in the City of New York, State of New York, from the date of
the Closing to and including June 30, 2016.
5. REPRESENTATIONS AND WARRANTIES OF CEMEX ESPANA AND THE COMPANY.
Cemex Espana and the Company represent and warrant to the Purchasers
that:
5.1 Organization; Power and Authority.
The Company is a limited liability company duly organized, validly
existing and in good standing under the laws of Delaware. Cemex Espana is a
corporation duly organized, validly existing and in good standing under the
laws of the Kingdom of Spain. Each of Cemex Espana and the Company is
qualified to do business in each jurisdiction in which such qualification is
required by law, other than those jurisdictions as to which the failure to be
so qualified would not reasonably be expected to have a Material Adverse
Effect. Each of Cemex Espana and the Company has the corporate or other
organizational power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver the Financing Documents to
which it is a party and to perform the provisions thereof.
5.2 Authorization, etc.
Each Financing Document has been duly authorized by all necessary
corporate or other organizational action on the part of each Obligor party
thereto, and each Financing Document constitutes, or will constitute upon
execution and delivery thereof, a legal, valid and binding obligation of each
Obligor party thereto enforceable against such Obligor in accordance with its
terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
5.3 Disclosure.
The Company, through its agent, RBS Securities Corporation, has
delivered to each Purchaser a copy of a Private Placement Memorandum, dated
April 30, 2003 (the "Memorandum"), relating to the transactions contemplated
hereby. The Memorandum fairly describes, in all material respects, the general
nature of the business and principal properties of Cemex Espana and its
Subsidiaries. Except as disclosed on Schedule 5.3, this Agreement, the
Memorandum, the documents, certificates or other writings delivered to the
Purchasers by or on behalf of Cemex Espana or the Company in connection with
the transactions contemplated hereby and the financial statements listed on
Schedule 5.5, taken as a whole, do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which
they were made. Except as disclosed in the Memorandum or as expressly
described on Schedule 5.3, or in one of the documents, certificates or other
writings identified therein, or in the financial statements listed on Schedule
5.5, since December 31, 2002, there has been no change in the financial
condition, operations, business, properties or prospects of Cemex Espana or
any Subsidiary except changes that individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect. There is no fact
known to the Company or Cemex Espana that would reasonably be expected to have
a Material Adverse Effect that has not been set forth herein or in the
Memorandum or in the other documents, certificates and other writings
delivered to the Purchasers by or on behalf of the Company or Cemex Espana
specifically for use in connection with the transactions contemplated hereby.
5.4 Organization and Ownership of Shares of Subsidiaries.
(a) Schedule 5.4 contains (except as noted therein) complete and
correct lists of (i) Cemex Espana's Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its organization and
the percentage of shares of each class of its Capital Stock outstanding owned
by Cemex Espana and each other Subsidiary and (ii) the directors and senior
officers of each of Cemex Espana and the manager of the Company.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown on Schedule 5.4 as being owned by Cemex
Espana and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by Cemex Espana or another Subsidiary free and
clear of any Lien (except as otherwise disclosed on Schedule 5.4).
(c) Each Subsidiary identified on Schedule 5.4 is a corporation or
other legal entity duly organized, validly existing and, if applicable, in good
standing under the laws of its jurisdiction of organization, and is duly
qualified as a foreign corporation or other legal entity and, if applicable, is
in good standing in each jurisdiction in which such qualification is required
by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than this Agreement, the agreements and
other restrictions listed on Schedule 5.4 and customary limitations imposed by
corporate law statutes) directly restricting the ability of such Subsidiary to
pay dividends out of profits or make any other similar distributions of profits
to Cemex Espana or any of its Subsidiaries that owns outstanding shares of
Capital Stock or similar equity interests of such Subsidiary.
5.5 Financial Statements.
Cemex Espana has delivered to each Purchaser copies of the financial
statements of Cemex Espana and its Subsidiaries listed on Schedule 5.5. All of
said financial statements (including in each case the related schedules and
notes) fairly present in all material respects the consolidated financial
position of Cemex Espana and its Subsidiaries as of the respective dates
specified in such schedule and the consolidated results of their operations for
the respective periods so specified and have been prepared in accordance with
Spanish GAAP consistently applied throughout the periods involved except as set
forth in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments).
5.6 Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Obligors of the
Financing Documents will not (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any property of Cemex Espana or any Subsidiary under, any indenture, mortgage,
deed of trust, loan purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which Cemex Espana or any
Subsidiary is bound or by which Cemex Espana or any Subsidiary or any of their
respective properties may be bound or affected, (ii) conflict with or result in
a breach of any of the terms, conditions or provisions of any order, judgment,
decree or ruling of any court, arbitrator or Governmental Authority applicable
to Cemex Espana or any Subsidiary or (iii) violate any provision of any statute
or other rule or regulation of any Governmental Authority applicable to Cemex
Espana or any Subsidiary.
5.7 Governmental Authorizations, etc.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by any Obligor of any Financing Document to
which such Obligor is a party.
5.8 Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed on Schedule 5.8, there are no actions, suits
or proceedings pending or, to the knowledge of Cemex Espana, threatened against
or affecting Cemex Espana or any Subsidiary or any property of Cemex Espana or
any Subsidiary in any court or before any arbitrator of any kind or before or
by any Governmental Authority that, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
(b) Neither Cemex Espana nor any Subsidiary is in default under any
term of any agreement or instrument to which it is a party or by which it is
bound, or any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law, ordinance,
rule or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
5.9 Taxes.
Cemex Espana and its Subsidiaries have filed all Material tax returns
that are required to have been filed in any jurisdiction, and have paid all
taxes shown to be due and payable on such returns and all other taxes and
assessments levied upon them or their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments (i) the
amount of which is not individually or in the aggregate Material or (ii) the
amount, applicability or validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which Cemex Espana or a
Subsidiary, as the case may be, has established adequate reserves in accordance
with relevant national accounting standards and practices (in the case of Cemex
Espana, Spanish GAAP). Cemex Espana knows of no basis for any other tax or
assessment that would reasonably be expected to have a Material Adverse Effect.
The charges, accruals and reserves on the books of Cemex Espana and its
Subsidiaries in respect of Federal, state or other taxes for all fiscal periods
are adequate.
5.10 Title to Property; Leases.
Cemex Espana and its Subsidiaries have good and sufficient title to
their respective properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance
sheet referred to in Section 5.5 or purported to have been acquired by Cemex
Espana or any Subsidiary after said date (except as sold or otherwise disposed
of in the ordinary course of business), in each case free and clear of Liens
prohibited by this Agreement. All leases that individually or in the aggregate
are Material are valid and subsisting and are in full force and effect in all
material respects.
5.11 Licenses, Permits, etc.
Except as disclosed on Schedule 5.11,
(a) Cemex Espana and its Subsidiaries own or possess all licenses,
permits, franchises, authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto, that individually or in the
aggregate are Material, without known conflict with the rights of others except
for those conflicts that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect;
(b) to the best knowledge of Cemex Espana, no product of Cemex Espana
infringes in any material respect any license, permit, franchise,
authorization, patent, copyright, service mark, trademark, trade name or other
right owned by any other Person; and
(c) to the best knowledge of Cemex Espana, there is no Material
violation by any Person of any right of Cemex Espana or any of its Subsidiaries
with respect to any patent, copyright, service mark, trademark, trade name or
other right owned or used by Cemex Espana or any of its Subsidiaries.
5.12 ERISA; Foreign Pension Plans.
(a) The Company and each ERISA Affiliate have operated and
administered each Plan in compliance with all applicable laws except for such
instances of noncompliance as have not resulted in and would not reasonably be
expected to result in a Material Adverse Effect. Neither the Company nor any
ERISA Affiliate has incurred any Material liability pursuant to Title I or IV
of ERISA or the penalty or excise tax provisions of the Code relating to
employee benefit plans (as defined in Section 3 of ERISA), and no event,
transaction or condition has occurred or exists that would reasonably be
expected to result in the incurrence of any such Material liability by the
Company or any ERISA Affiliate, or in the imposition of any Lien on any of the
rights, properties or assets of the Company or any ERISA Affiliate, in either
case pursuant to Title I or IV of ERISA or to such penalty or excise tax
provisions or to Section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as would not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each
of the Plans (other than Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the actuarial assumptions
specified for funding in such Plan's most recent actuarial valuation report,
did not exceed the aggregate current value of the assets of such Plan allocable
to such benefit liabilities by an amount that would reasonably be expected to
have a Material Adverse Effect in the case of any single Plan or in the
aggregate for all Plans. The term "benefit liabilities" has the meaning
specified in section 4001 of ERISA and the terms "current value" and "present
value" have the meaning specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer Plans that are
individually or in the aggregate are Material.
(d) The execution and delivery of this Agreement and the issuance and
sale of the Notes hereunder will not involve any transaction that is subject to
the prohibitions of section 406 of ERISA or in connection with which a tax
would be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The
representation in the first sentence of this Section 5.12(d) is made in
reliance upon and subject to (i) the accuracy of the representations of the
Purchasers in Section 6.2 as to the sources of the funds used to pay the
purchase price of the Notes and (ii) the assumption, made solely for the
purpose of making such representation, that Department of Labor Interpretive
Bulletin 75-2 with respect to prohibited transactions remains valid in the
circumstances of the transactions contemplated herein.
(e) All Foreign Pension Plans have been established, operated,
administered and maintained in material compliance with all laws, regulations
and orders applicable thereto. Except where it would not reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect,
all premiums, contributions and any other amounts required to be paid pursuant
to applicable Foreign Pension Plan documents or applicable laws have been paid
or accrued as required.
5.13 Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has offered the
Notes or any similar securities for sale to, or solicited any offer to buy any
of the same from, or otherwise approached or negotiated in respect thereof
with, any Person other than the Purchasers and not more than 40 other
Institutional Investors (as defined in clause (c) of the definition of such
term), each of which has been offered the Notes at a private sale for
investment. Neither the Company nor anyone acting on its behalf has taken, or
will take, any action that would subject the issuance or sale of the Notes to
the registration requirements of Section 5 of the Securities Act.
5.14 Use of Proceeds; Margin Regulations.
The Company, through its parent Cemex Netherlands B.V., will apply the
proceeds of the sale of the Notes for general corporate purposes (including the
repayment of Financial Indebtedness) of Cemex Espana and its Subsidiaries. No
part of the proceeds from the sale of the Notes hereunder will be used,
directly or indirectly, for the purpose of buying or carrying any margin stock
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System, or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve the Company in a violation of
Regulation X of said Board or to involve any broker or dealer in a violation of
Regulation T of said Board. Margin stock does not constitute more than 5% of
the value of the consolidated assets of Cemex Espana and its Subsidiaries and
Cemex Espana does not have any present intention that margin stock will
constitute more than 25% of the value of such assets. As used in this Section,
the terms "margin stock" and "purpose of buying or carrying" shall have the
meanings assigned to them in said Regulation U.
5.15 Existing Financial Indebtedness; Future Liens.
(a) Except as described therein, Schedule 5.15 sets forth a complete
and correct list of all outstanding Financial Indebtedness of Cemex Espana and
its Subsidiaries as of May 31, 2003, since which date there has been no
Material change in the amounts, interest rates, sinking funds, installment
payments or maturities of the Financial Indebtedness of Cemex Espana or its
Subsidiaries. Neither Cemex Espana nor any Subsidiary is in default, and no
waiver of such a default is currently in effect, in the payment of any
principal or interest on any Financial Indebtedness of Cemex Espana or such
Subsidiary and no Material event or condition exists with respect to any
Financial Indebtedness of Cemex Espana or any Subsidiary that would permit (or
that with notice or other lapse of time, or both, would permit) one or more
Persons to cause such Financial Indebtedness to become due and payable before
its stated maturity or before its regularly scheduled dates of payment.
(b) Except as disclosed on Schedule 5.15, neither Cemex Espana nor any
Subsidiary has agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its property, whether now owned
or hereafter acquired, to be subject to a Lien not permitted by Section 10.3.
5.16 Foreign Assets Control Regulations, Foreign Corrupt Practices Act, etc.
Neither the sale of the Notes by the Company hereunder nor the use of
the proceeds thereof will violate the Trading with the Enemy Act, as amended,
or any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto. Without limiting the
foregoing, neither Cemex Espana nor any Subsidiary (i) is or will become a
blocked person described in the Anti-Terrorism Order or the Department of the
Treasury Rule or (ii) knowingly engages or will engage in any dealings or
transactions with any such person.
Neither the sale of the Notes by the Company hereunder nor its use of
the proceeds thereof will cause any Purchaser to be in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977 or other applicable
national or local law regulating the payments of bribes to government officials
or employees nor will the proceeds from the sale of the Notes be used by the
Company for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, to make any direct or indirect unlawful
payment to any foreign or domestic government official or employee or make any
bribe or other unlawful payment.
5.17 Status under Certain Statutes.
Neither the Company nor any Guarantor is subject to regulation under
the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the ICC Termination Act of 1995, as amended,
or the Federal Power Act, as amended.
5.18 Environmental Matters.
Neither Cemex Espana nor any Subsidiary has knowledge of any claim or
has received any notice of any claim, and, to Cemex Espana's knowledge, no
proceeding has been instituted raising any claim against Cemex Espana or any of
its Subsidiaries or any of their respective real properties now or formerly
owned, leased or operated by any of them or other assets, alleging any
violation of Environmental Laws, except, in each case, such as would not
reasonably be expected to result in a Material Adverse Effect. Except as
otherwise disclosed to the Purchasers in writing,
(a) neither Cemex Espana nor any Subsidiary has knowledge of any facts
that would give rise to any claim, public or private, of violation of
Environmental Laws or damage to the environment emanating from, occurring on or
in any way related to real properties or other assets now or formerly owned,
leased or operated by any of them or their use, except, in each case, such as
would not reasonably be expected to result in a Material Adverse Effect;
(b) neither Cemex Espana nor any Subsidiary has stored any Hazardous
Materials on real properties now or formerly owned, leased or operated by any
of them and has not disposed of any Hazardous Materials in a manner contrary to
any Environmental Laws, in each case in any manner that would reasonably be
expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or operated
by Cemex Espana or any Subsidiary are in compliance with applicable
Environmental Laws, except where failure to comply would not reasonably be
expected to result in a Material Adverse Effect.
5.19 Pari Passu Obligations.
The obligations of each Obligor under the Financing Documents rank at
least pari passu with the claims of all other unsecured and unsubordinated
creditors of such Obligor, except for obligations mandatorily preferred by law
applying to companies generally (including but not limited to under paragraph
1, 2 or 3 of Article 913 of the Spanish Commercial Code (Codigo de Comercio),
Article 914 of the Spanish Commercial Code (Codigo de Comercio), Article 32 of
the Spanish Workers' Statute (Estatuto de los Trabajadores), Article 71 of the
Spanish General Taxation Law (Ley General Tributaria) and Article 22 of the
Spanish General Law on Social Security (Ley General de la Seguridad Social) and
those whose claims that according to Spanish law rank in priority as a result
of having been raised to the status of a Spanish Public Document as a result of
Permitted Notarizations in accordance with Section 10.7.
6. REPRESENTATIONS OF THE PURCHASERS.
6.1 Purchase for Investment.
Each Purchaser represents that it is purchasing the Notes for its own
account or for one or more separate accounts maintained by it or for the
account of one or more pension or trust funds and not with a view to the
distribution thereof; provided that the disposition of such Purchaser's or such
pension or trust funds' property shall at all times be within such Purchaser's
or such pension or trust funds' control. Each Purchaser understands that the
Notes have not been registered under the Securities Act and may be resold only
if registered pursuant to the provisions of the Securities Act or if an
exemption from registration is available, except under circumstances where
neither such registration nor such an exemption is required by law, and that
the Company is not required to register the Notes.
6.2 Source of Funds.
Each Purchaser represents that at least one of the following
statements is an accurate representation as to each source of funds (a
"Source") to be used by such Purchaser to pay the purchase price of the Notes
to be purchased by such Purchaser hereunder:
(a) the Source is an "insurance company general account" within the
meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60
(issued July 12, 1995) and there is no employee benefit plan, treating as a
single plan, all plans maintained by the same employer or employee
organization, with respect to which the amount of the general account reserves
and liabilities for all contracts held by or on behalf of such plan, exceeds
10% of the total reserves and liabilities of such general account (exclusive of
separate account liabilities) plus surplus, as set forth in the NAIC Annual
Statement filed with such Purchaser's state of domicile; or
(b) the Source is either (i) an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990) or (ii) a
bank collective investment fund, within the meaning of PTE 91-38 (issued July
12, 1991) and, except as such Purchaser has disclosed to the Company in writing
pursuant to this clause (b) at least five Business Days prior to such
Purchaser's purchase of the Notes, no employee benefit plan or group of plans
maintained by the same employer or employee organization beneficially owns more
than 10% of all assets allocated to such pooled separate account or collective
investment fund; or
(c) the Source constitutes assets of an "investment fund" (within the
meaning of Part V of the QPAM Exemption) managed by a "qualified professional
asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption),
no employee benefit plan's assets that are included in such investment fund,
when combined with the assets of all other employee benefit plans established
or maintained by the same employer or by an affiliate (within the meaning of
Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client assets
managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption
are satisfied, neither the QPAM nor a person controlling or controlled by the
QPAM (applying the definition of "control" in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (i) the identity of
such QPAM and (ii) the names of all employee benefit plans whose assets are
included in such investment fund have been disclosed to the Company in writing
pursuant to this clause (c) at least five Business Days prior to such
Purchaser's purchase of the Notes; or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans, each of
which has been identified to the Company in writing pursuant to this clause
(e); or
(f) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA. If Cemex Espana
notifies a proposed Purchaser prior to its purchase of the Notes that any plan
identified by Purchaser pursuant to clause (b) or (c) of this Section 6.2
would be prohibited by ERISA Section 406 from purchasing the Notes, the Source
shall not include assets of any such plan.
7. INFORMATION AS TO CEMEX ESPANA and THE COMPANY.
7.1 Financial and Business Information.
Cemex Espana shall deliver to each holder that is an Institutional
Investor:
(a) Semi-Annual Statements-- within 90 days after the end of the
first half of each fiscal year of Cemex Espana, duplicate copies of
(i) a consolidated balance sheet of Cemex Espana and its
Subsidiaries as at the end of such period, and
(ii) consolidated statements of income and changes in
shareholders' equity of Cemex Espana and its Subsidiaries, for
such period,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with Spanish GAAP applicable to
interim financial statements generally (for the avoidance of doubt,
until such time as Cemex Espana produces its interim financial
statements with notes, without notes attached thereto), and certified
by a Senior Financial Officer as fairly presenting, in all material
respects, the financial position of the companies being reported on
and their results of operations, subject to changes resulting from
year-end adjustments;
(b) Annual Statements-- within 180 days after the end of each
fiscal year of Cemex Espana, duplicate copies of,
(i) a consolidated balance sheet of Cemex Espana and its
Subsidiaries as at the end of such year, and
(ii) consolidated statements of income, of changes in
shareholders' equity and of source and application of funds of
Cemex Espana and its Subsidiaries for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in
accordance with Spanish GAAP, and accompanied by an opinion thereon
of independent certified public accountants of recognized standing,
which opinion shall state that such financial statements present
fairly, in all material respects, the financial position of the
companies being reported upon and their results of operations and of
source and application of funds and have been prepared in conformity
with Spanish GAAP, and that the examination by such accountants in
connection with such financial statements has been made in accordance
with generally accepted auditing standards in Spain, and that such
audit provides a reasonable basis for such opinion in the
circumstances;
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by Cemex Espana or any Subsidiary to public
securities holders generally and (ii) each regular or periodic report,
each registration statement (without exhibits except as expressly
requested by such holder), and each prospectus and all amendments
thereto filed by Cemex Espana or any Subsidiary with the Securities
and Exchange Commission or with any other Governmental Authority of
competent jurisdiction charged with the regulation of securities and
of all press releases and other statements made available generally by
Cemex Espana or any Subsidiary to the public concerning developments
that are Material;
(d) Notice of Default or Event of Default -- promptly, and in
any event within five days after a Senior Financial Officer becomes
aware of the existence of any Default or Event of Default or that any
Person has given any notice or taken any action with respect to a
claimed default hereunder or that any Person has given any notice or
taken any action with respect to a claimed default of the type
referred to in Section 11(f), a written notice specifying the nature
and period of existence thereof and what action Cemex Espana is taking
or proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within five days
after a Responsible Officer becoming aware of any of the following, a
written notice setting forth the nature thereof and the action, if
any, that the Company or an ERISA Affiliate proposes to take with
respect thereto:
(i) with respect to any Plan, any reportable event, as
defined in section 4043(b) of ERISA and the regulations
thereunder, for which notice thereof has not been waived
pursuant to such regulations as in effect on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by the
Company or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by the PBGC with respect to
such Multiemployer Plan; or
(iii) any event, transaction or condition that could
result in the incurrence of any liability by the Company or any
ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to
employee benefit plans, or in the imposition of any Lien on any
of the rights, properties or assets of the Company or any ERISA
Affiliate pursuant to Title I or IV of ERISA or such penalty or
excise tax provisions, if such liability or Lien, taken together
with any other such liabilities or Liens then existing, would
reasonably be expected to have a Material Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and in any
event within 30 days of receipt thereof, copies of any notice to Cemex
Espana or any Subsidiary from any Governmental Authority relating to
any order, ruling, statute or other law or regulation that would
reasonably be expected to have a Material Adverse Effect; and
(g) Requested Information -- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of Cemex Espana or
any of its Subsidiaries or relating to the ability of the Company or
any Guarantor to perform its obligations hereunder and under the other
Financing Documents as from time to time may be reasonably requested
by any such holder. In furtherance of the foregoing, if reasonably
requested by any holder, Cemex Espana shall provide information
regarding Cemex Espana's business and financial statements if such
information has been requested by the SVO in order to assign or
maintain a designation of the Notes.
7.2 Officer's Certificate.
Each set of financial statements delivered to a holder pursuant to
Section 7.1(a) or Section 7.1(b) hereof shall be accompanied by a certificate
of a Senior Financial Officer setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations, to the extent applicable) required in order to establish
whether Cemex Espana was in compliance with the requirements of
Sections 10.3 through 10.7 during the semi-annual or annual period
covered by the statements then being furnished (including with respect
to each such Section, where applicable, the calculations of the
maximum or minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such Section, and the calculation of
the amount, ratio or percentage then in existence); and
(b) Event of Default-- a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of Cemex Espana and its Subsidiaries from the beginning of
the semi-annual or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall
not have disclosed the existence during such period of any condition
or event that constitutes a Default or an Event of Default or, if any
such condition or event existed or exists (including, without
limitation, any such event or condition resulting from the failure of
Cemex Espana or any Subsidiary to comply with any Environmental Law),
specifying the nature and period of existence thereof and what action
Cemex Espana shall have taken or proposes to take with respect
thereto.
7.3 Inspection.
Cemex Espana and the Company shall permit the representatives of each
holder that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists,
at the expense of such holder and upon reasonable prior notice to
Cemex Espana, to visit the principal executive offices of Cemex Espana
and the Company, to discuss the affairs, finances and accounts of
Cemex Espana and its Subsidiaries with the officers of Cemex Espana
and the manager of the Company, and (with the consent of Cemex Espana,
which consent will not be unreasonably withheld), and to visit the
other offices and properties of Cemex Espana and each Material
Subsidiary, all at such reasonable times and as often as may be
reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at
the expense of the Company, to visit and inspect any of the offices or
properties of Cemex Espana or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to
make copies and extracts therefrom and to discuss their respective
affairs, finances and accounts with the officers of Cemex Espana and
the manager of the Company and the independent public accountants of
Cemex Espana (and by this provision Cemex Espana authorizes said
accountants to discuss the affairs, finances and accounts of Cemex
Espana and its Subsidiaries), all at such times and as often as may be
reasonably requested; provided that at all such meetings with
independent public accountants, a representative of Cemex Espana is
entitled to, but need not, be in attendance.
7.4 Maintenance of Books and Records.
Cemex Espana will, and will cause each of its Subsidiaries to, keep
accurate records and books of account, in which complete entries will be made
in accordance with relevant national accounting standards and practices (in
the case of Cemex Espana, Spanish GAAP).
8. MATURITY; PREPAYMENT OF THE NOTES.
8.1 Stated Maturity.
(a) The entire principal amount of the Tranche 1 Notes shall become
due and payable on June 15, 2010.
(b) The entire principal amount of the Tranche 2 Notes shall become
due and payable on June 15, 2013.
(c) The entire principal amount of the Tranche 3 Notes shall become
due and payable on June 15, 2015.
8.2 Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided below, prepay
at any time all, or from time to time any part of, the Notes, in an amount not
less than 5% of the aggregate principal amount of the Notes then outstanding in
the case of a partial prepayment, at 100% of the principal amount so prepaid,
together with interest accrued but unpaid thereon to the date of such
prepayment, plus the Make-Whole Amount determined for the prepayment date with
respect to such principal amount. The Company will give each holder of Notes
written notice of each optional prepayment under this Section 8.2 not less than
30 days and not more than 60 days prior to the date fixed for such prepayment.
Each such notice shall specify such date, the aggregate principal amount of the
Notes to be prepaid on such date, the principal amount of each Note held by
such holder to be prepaid (determined in accordance with Section 8.5) and the
interest to be paid on the prepayment date with respect to such principal
amount being repaid, and shall be accompanied by a certificate of a Senior
Financial Officer as to the estimated Make-Whole Amount due in connection with
such prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each holder of Notes a
certificate of a Senior Financial Officer specifying the calculation of such
Make-Whole Amount as of the specified prepayment date. In the event the Company
shall incorrectly compute the Make-Whole Amount, if any, payable in connection
with any Note to be purchased pursuant to this Section 8.2, the holder of such
Note shall not be bound by such incorrect computation, but instead, shall be
entitled to receive an amount equal to the correct Make-Whole Amount, if any,
computed in compliance with the terms of this Agreement.
8.3 Optional Prepayment of Notes for Tax Reasons.
If the Company or Cemex Espana (assuming that Cemex Espana is required
to make a payment) shall deliver to each holder (each, an "Affected Holder") to
which an Additional Payment would be payable by the Company or Cemex Espana on
the occasion of the next payment by the Company or Cemex Espana in respect of
such Notes (in the case of Cemex Espana, in an amount greater than 10% of the
amount which Cemex Espana would have been obligated to pay exclusive of the
requirements of Section 14.3) (the date of such next payment in respect of
which such Additional Payment will be due is herein referred to as the
"Affected Payment Date") written notice of a Responsible Officer (with respect
to each incident in which a Related Tax is initially levied by a Taxing
Jurisdiction that would result in the payment of an Additional Payment, a "Tax
Prepayment Notice") setting forth in reasonable detail the nature of the
Related Tax in respect of such Additional Payment and confirming that
(a) such Related Tax is required, under the laws of such Taxing
Jurisdiction, to be withheld or deducted from the payment due to such
Affected Holders on such Affected Payment Date and that such payment
is the first payment in respect of which such particular Related Tax
must be withheld (it being understood that the payment immediately
following and reflecting a change in a pre-existing Related Tax shall
be deemed the first payment with respect to such Related Tax),
provided that if the enactment of the statute or regulation, the
amendment of an existing statute or regulation or the adoption or
amendment of a treaty giving rise to a Related Tax occurs less than
180 days prior to the due date of a payment in respect of the Notes
that is subject to such Related Tax, then, at the election of the
Company, the first payment in respect of the Notes, the due date of
which is more than 180 days after such enactment, shall be deemed to
be such first payment and
(b) as of the date of such opinion, such Related Tax would be
required to be withheld from similar future payments to such Affected
Holders,
then the Company may elect to prepay all (but not less than all) of the Notes
held by each such Affected Holder, provided that the Company may not elect to
so prepay if
(i) the Related Tax being levied is in respect of a payment
under the Notes having an Affected Payment Date that is more than 180
days after the delivery of the notice from a Responsible Officer
referred to above in respect of such Related Tax or
(ii) the Company (or, if applicable, Cemex Espana) shall have
failed to take such reasonable actions as are provided by law so as to
avoid the imposition of such Related Tax, or the Company (or, if
applicable, Cemex Espana) shall have taken any action the direct
result of which is the imposition of such Related Tax.
The Company shall deliver such Tax Prepayment Notice to each Affected Holder
not less than 30 nor more than 60 days prior to the prepayment date (in
respect of each Tax Prepayment Notice, a "Tax Prepayment Date"), which Tax
Prepayment Date shall be the Affected Payment Date related to such Additional
Payment, which Tax Prepayment Notice shall state the circumstances giving rise
to the Company's (or, if applicable, Cemex Espana's) obligation to make such
Additional Payment and shall set forth the Tax Prepayment Date. Such Tax
Prepayment Notice shall also state that each Note of each such Affected Holder
shall be prepaid on such Tax Prepayment Date at a price equal to 100% of the
principal amount of such Note, together with an amount equal to the Make-Whole
Amount, if any, as of the Tax Prepayment Date in respect of the principal
amount of the Notes being so prepaid and interest on such principal amount
then being prepaid accrued to the Tax Prepayment Date (as provided in the
definition of Reinvestment Yield, in determining the Make-Whole Amount with
respect to any prepayment under this Section 8.3, and only under this Section
8.3, the margin over the implied yield of U.S. Treasury Securities will be
0.85% rather than 0.50%). No Note of any Affected Holder shall be prepaid
pursuant to this Section 8.3 if such Affected Holder shall, not less than five
Business Days prior to the Tax Prepayment Date, deliver a written notice to
the Company (which notice shall be binding on any transferee of such Note),
stating that such Affected Holder unconditionally and irrevocably waives any
right to any Additional Payment under Section 14.3 in respect of the specific
event or condition (including with respect to the continuing or future effects
of such specific event or condition on subsequent payments) that shall have
given rise to the Company's prepayment right under this Section 8.3 (it being
agreed that no such waiver shall constitute a waiver of any other right to
receive Additional Payments in respect of any event or condition other than
the specific event or condition in respect of which such waiver shall be
given). Two Business Days prior to the Tax Prepayment Date, the Company will
deliver to each Affected Holder a certificate of a Responsible Officer
specifying the principal amount of the Notes of such Affected Holders
specified therein, together with the Make-Whole Amount, if any, as of the
specified Tax Prepayment Date with respect thereto, if any, and accrued
interest thereon shall become due and payable on the specified Tax Prepayment
Date. In the event the Company shall incorrectly compute the Make-Whole
Amount, if any, payable in connection with any Note to be purchased pursuant
to this Section 8.3, the holder of such Note shall not be bound by such
incorrect computation, but instead, shall be entitled to receive an amount
equal to the correct Make-Whole Amount, if any, computed in compliance with
the terms of this Agreement. The Company will, promptly after making such
prepayment, notify in writing all holders of Notes of the payment amount, and
the name of the holder, of each Note prepaid under this Section 8.3.
8.4 Prepayment Upon Substantial Asset Disposition.
In the event that Cemex Espana or any Subsidiary (i) effects any
sale, lease or other disposition of assets constituting a Substantial Asset
Disposition and (ii) elects to apply the Net Proceeds Amount resulting from
such Substantial Asset Disposition to the retirement of Senior Debt in
accordance with Section 10.4, the Company will offer to prepay, by written
notice to all holders as provided in the next sentence (a "Section 8.4
Notice"), a principal amount of each Note equal to the Pro Rata Amount of the
Net Proceeds Amount of such Substantial Asset Disposition, together with
accrued and unpaid interest due on each Note to the Disposition Prepayment
Date (defined below), without any Make-Whole Amount. Each Section 8.4 Notice
shall (i) describe the material facts of the related Substantial Asset
Disposition in reasonable detail, (ii) refer to this Section 8.4 and the
rights of each holder of the Notes to require that an amount equal to the Pro
Rata Amount of the Net Proceeds Amount from such Substantial Asset Disposition
be applied to the prepayment of such holder's Notes on the terms and
conditions provided herein, (iii) contain an offer by the Company to apply an
amount equal to the Pro Rata Amount of the Net Proceeds Amount to the
prepayment of the principal of the outstanding Notes held by such holder, with
accrued interest to the Disposition Prepayment Date, but not including any
Make-Whole Amount, and (iv) set forth the date, which shall be not less than
30 nor more than 60 days following the date of the Section 8.4 Notice and not
more than one year following the date of such Substantial Asset Disposition
(the "Disposition Prepayment Date"), on which the Company shall make such
prepayment. Each holder of the Notes shall have the right to accept such offer
of prepayment by written notice to the Company given not later than 20 days
following receipt of the Section 8.4 Notice. Holders that do not submit such a
written notice to the Company accepting such offer of prepayment within such
20-day period shall be deemed to have rejected such offer. The Company shall
on the relevant Disposition Prepayment Date prepay an amount equal to the Pro
Rata Amount of the Net Proceeds Amount, together with accrued and unpaid
interest to the Disposition Prepayment Date, without any Make-Whole Amount,
and shall apply such amounts to the Notes held by holders who have accepted
the Company's offer of prepayment.
8.5 Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes pursuant to
Section 8.2, the principal amount of the Notes to be prepaid shall be
allocated among all of the Notes at the time outstanding in proportion, as
nearly as practicable, to the respective unpaid principal amounts thereof not
theretofore called for prepayment.
8.6 Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this Section 8,
the principal amount of each Note to be prepaid shall mature and become due
and payable on the date fixed for such prepayment, together with interest on
such principal amount accrued to such date and the applicable Make-Whole
Amount, if any. From and after such date, unless the Company shall fail to pay
such principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount
shall cease to accrue. Any Note paid or prepaid in full shall be surrendered
to the Company and cancelled and shall not be reissued, and no Note shall be
issued in lieu of any prepaid principal amount of any Note.
8.7 Purchase of Notes.
Cemex Espana and the Company will not, nor will Cemex Espana or the
Company permit any Affiliate (to the extent that the Company or Cemex Espana
controls such Affiliate), to purchase, redeem, prepay or otherwise acquire,
directly or indirectly, any of the outstanding Notes except (a) upon the
payment or prepayment of the Notes in accordance with the terms of this
Agreement and the Notes or (b) pursuant to an offer to purchase made by any
Obligor or an Affiliate pro rata to the holders of all Notes at the time
outstanding upon the same terms and conditions. Any such offer pursuant to the
preceding clause (b) shall provide each holder with sufficient information to
enable it to make an informed decision with respect to such offer, and shall
remain open for at least 30 Business Days. If the Required Holders accept such
offer, the Company shall promptly notify the remaining holders of such fact
and the expiration date for the acceptance by holders of Notes of such offer
shall be extended by the number of days necessary to give each such remaining
holder at least five Business Days from its receipt of such notice to accept
such offer. The Company will promptly cancel all Notes acquired by it or any
Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant to
any provision of this Agreement and no Notes may be issued in substitution or
exchange for any such Notes.
8.8 Make-Whole Amount for Notes.
The term "Make-Whole Amount" means, with respect to any Note, an
amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of such Note over the
amount of such Called Principal; provided that the Make-Whole Amount may in no
event be less than zero. For the purposes of determining the Make-Whole
Amount, the following terms have the following meanings:
"Called Principal" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2
or 8.3 or has become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
"Discounted Value" means, with respect to the Called
Principal of any Note, the amount obtained by discounting all
Remaining Scheduled Payments with respect to such Called Principal
from their respective scheduled due dates to the Settlement Date with
respect to such Called Principal, in accordance with accepted
financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable)
equal to the Reinvestment Yield with respect to such Called
Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any Note, 0.50% (or 0.85% in the case of any prepayment
under Section 8.3) plus the yield to maturity implied by (i) the
yields reported, as of 10:00 a.m. (New York City time) on the second
Business Day preceding the Settlement Date with respect to such
Called Principal, on the display designated as "Page PX1" on the
Bloomberg Financial Markets Services Screen (or such other display as
may replace Page PX1 on the Bloomberg Financial Markets Services
Screen) for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Life of such Called Principal as of
such Settlement Date, or (ii) if such yields are not reported as of
such time or the yields reported as of such time are not
ascertainable, the Treasury Constant Maturity Series Yields reported,
for the latest day for which such yields have been so reported as of
the second Business Day preceding the Settlement Date with respect to
such Called Principal, in Federal Reserve Statistical Release
H.15(519) (or any comparable successor publication) for actively
traded U.S. Treasury securities having a constant maturity equal to
the Remaining Life of such Called Principal as of such Settlement
Date. Such implied yield will be determined, if necessary, by (a)
converting U.S. Treasury bill quotations to bond-equivalent yields in
accordance with accepted financial practice and (b) interpolating
linearly between (1) the actively traded U.S. Treasury security with
the duration closest to and greater than the Remaining Life and (2)
the actively traded U.S. Treasury security with the duration closest
to and less than the Remaining Life.
"Remaining Life" means, with respect to any Called Principal
of any Note, the number of years (calculated to the nearest
one-twelfth year) that will elapse between the Settlement Date with
respect to such Called Principal and the maturity date of such Note.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of any Note, all payments of such Called Principal
and interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date; provided that if
such Settlement Date is not a date on which interest payments are due
to be made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount
of interest accrued to such Settlement Date and required to be paid
on such Settlement Date pursuant to Section 8.2, 8.3 or 12.1.
"Settlement Date" means, with respect to the Called
Principal of any Note, the date on which such Called Principal is to
be prepaid pursuant to Section 8.2 or 8.3 or has become or is
declared to be immediately due and payable pursuant to Section 12.1,
as the context requires.
8.9 Change in Control, Offer to Prepay, etc.
(a) Notice and Offer. If a Responsible Officer shall have knowledge of
Cemex having entered into a binding agreement that will give rise to a Change
in Control, such agreement shall have been publicly disclosed, and it is
reasonably practicable, to give notice of such agreement to the holders prior
to the expected effective date of such Change in Control (taking into account
any applicable confidentiality agreements and other business considerations
arising in connection with the negotiation of related transactions), Cemex
Espana shall cause the Company to give each holder of the Notes notice of such
agreement and such expected effective date no less than 10 Business Days prior
to such expected effective date. Within 30 days of the actual effective date
(if any) of such Change in Control, Cemex Espana will cause the Company to give
written notice of such Change in Control to each holder. Such written notice of
the actual effective date shall contain, and such written notice shall
constitute, an irrevocable offer by the Company to prepay all of the Notes held
by such holder (or, at the election of such holder, a portion of such Notes
designated by such holder) on a date specified in such notice (the "Control
Prepayment Date") that is not less than 30 days and not more than 60 days after
the date of such written notice. If the Control Prepayment Date shall not be
specified in such notice, the Control Prepayment Date shall be the 60th day
after the date of such written notice.
(b) Acceptance and Payment. To accept (in whole or in part) or reject
(in its entirety) such offered prepayment, a holder shall cause a notice of
such acceptance or rejection to be delivered to the Company not later than five
Business Days prior to the Control Prepayment Date. In such notice, such holder
shall, if such notice is an acceptance, designate the principal amount of Notes
that it has elected to have prepaid and, if such notice is a rejection, state
that such holder is rejecting in its entirety such offered prepayment. If so
accepted, such offered prepayment in respect of such principal amount of such
Notes shall be due and payable on the Control Prepayment Date. Such accepted
offered prepayment shall be made at 100% of the principal amount of such Notes
so elected to be prepaid, together with interest on such principal amount
accrued to the Control Prepayment Date, but not including any Make-Whole
Amount. If a holder shall not have responded to such offered prepayment on or
prior to five Business Days prior to the Control Prepayment Date, such holder
shall be deemed to have rejected, in its entirety, such offered prepayment.
(c) Officer's Certificate. Each offer to prepay the Notes pursuant to
this Section 8.9 will be accompanied by an Officer's Certificate dated the date
of such offer, specifying:
(i) the Control Prepayment Date;
(ii) the principal amount of each Note offered to be prepaid on
such Control Prepayment Date;
(iii) the interest to be paid on each such Note, accrued to the
Control Prepayment Date; and
(iv) in reasonable detail, the nature of the Change in Control.
(d) Notice Concerning Status of Holders of Notes. Promptly after each
Control Prepayment Date and the making of all prepayments contemplated on such
Control Prepayment Date under this Section 8.9 (and, in any event, within 30
days thereof) the Company shall deliver to each holder a certificate signed by
a Responsible Officer of the Company containing a list of the then current
holders of Notes and setting forth as to each such holder the outstanding
principal amount of Notes held by such holder at such time.
9. AFFIRMATIVE COVENANTS.
Cemex Espana and the Company covenant that so long as any of the Notes
are outstanding:
9.1 Compliance with Law.
Cemex Espana will and will cause each of its Subsidiaries to comply
with all laws, ordinances or governmental rules or regulations to which each of
them is subject, including, without limitation, Environmental Laws, and will
obtain and maintain in effect all licenses, certificates, permits, franchises
and other governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses, in each
case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
9.2 Insurance.
Cemex Espana will and will cause each of its Subsidiaries to maintain
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and similarly situated, except to the extent that the failure to maintain such
insurance would not have a Material Adverse Effect.
9.3 Maintenance of Properties.
Cemex Espana will and will cause each of its Subsidiaries to maintain
and keep, or cause to be maintained and kept, their respective properties in
good repair, working order and condition (other than ordinary wear and tear),
so that the business carried on in connection therewith may be properly
conducted at all times; provided that this Section shall not prevent Cemex
Espana or any Subsidiary from discontinuing the operation and the maintenance
of any of its properties if such discontinuance is desirable in the conduct of
its business and Cemex Espana has concluded that such discontinuance would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.4 Payment of Taxes and Claims.
Cemex Espana will and will cause each of its Subsidiaries to file all
Material tax returns required to be filed in any jurisdiction and to pay and
discharge all taxes shown to be due and payable on such returns and all other
taxes, assessments, governmental charges or levies imposed on them or any of
their properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent
and all claims for which sums have become due and payable that have or might
become a Lien on properties or assets of Cemex Espana or any Subsidiary;
provided that neither Cemex Espana nor any Subsidiary need pay any such tax or
assessment or claims if (i) the amount, applicability or validity thereof is
contested by Cemex Espana or such Subsidiary on a timely basis in good faith
and in appropriate proceedings, and Cemex Espana or a Subsidiary has
established adequate reserves therefor in accordance with relevant national
accounting standards and practices (in the case of Cemex Espana, Spanish GAAP)
on the books of Cemex Espana or such Subsidiary or (ii) the nonpayment of all
such taxes and assessments in the aggregate would not reasonably be expected to
have a Material Adverse Effect.
9.5 Corporate Existence, etc.
Cemex Espana will at all times preserve and keep in full force and
effect its corporate existence. Subject to Sections 10.2 and 10.4, Cemex Espana
will at all times preserve and keep in full force and effect the corporate
existence of each of its Subsidiaries (unless merged into Cemex Espana or a
Subsidiary) and all rights and franchises of Cemex Espana and its Subsidiaries
unless, in the good faith exercise of the reasonable business judgment of Cemex
Espana, the termination of or failure to preserve and keep in full force and
effect such corporate existence, right or franchise would not, individually or
in the aggregate, have a Material Adverse Effect.
9.6 Pari Passu Obligations.
Cemex Espana covenants that the obligations of each Obligor hereunder
and under the Financing Documents rank at least pari passu with the claims of
all other unsecured and unsubordinated creditors of such Obligor, except for
obligations mandatorily preferred by law applying to companies generally
(including but not limited to under paragraph 1, 2 or 3 of Article 913 of the
Spanish Commercial Code (Codigo de Comercio), Article 914 of the Spanish
Commercial Code (Codigo de Comercio), Article 32 of the Spanish Workers'
Statute (Estatuto de los Trabajadores), Article 71 of the Spanish General
Taxation Law (Ley General Tributaria) and Article 22 of the Spanish General Law
on Social Security (Ley General de la Seguridad Social) and those whose claims
that according to Spanish law rank in priority as a result of having been
raised to the status of a Spanish Public Document as a result of Permitted
Notarizations in accordance with Section 10.7.
10. NEGATIVE COVENANTS.
Cemex Espana and the Company covenant that so long as any of the Notes
are outstanding:
10.1 Transactions with Affiliates.
Cemex Espana will not and will not permit any Subsidiary to enter
into directly or indirectly any transaction or Material group of related
transactions (including without limitation the purchase, lease, sale or
exchange of properties of any kind or the rendering of any service) with any
Affiliate (other than Cemex Espana or another Subsidiary), except in the
ordinary course and pursuant to the reasonable requirements of Cemex Espana's
or such Subsidiary's business and upon fair and reasonable terms no less
favorable to Cemex Espana or such Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate.
10.2 Merger, Consolidation, etc.
(a) Merger, Consolidation, etc. of Guarantors.
Cemex Espana will not, and will not permit any other Guarantor to,
consolidate with or merge with any other corporation or convey, transfer or
lease substantially all of its assets in a single transaction or series of
transactions to any Person unless:
(i) the successor formed by such consolidation or the survivor
of such merger or the Person that acquires by conveyance, transfer or
lease substantially all of the assets of such Guarantor as an
entirety, as the case may be, shall be a Guarantor or a solvent Person
organized and existing under the laws of the United States or any
State thereof (including the District of Columbia) or any country that
is a member of the EU on the date hereof (other than Greece) or any
political subdivision thereof and, if a Guarantor is not the surviving
Person, such Person (x) shall have executed and delivered to each
holder of any Notes its assumption of the due and punctual performance
and observance of such Guarantor's obligations under this Agreement
(if such Guarantor was obligated hereunder immediately prior to such
consolidation, merger, conveyance, transfer or lease) and the Note
Guarantee and (y) shall have caused to be delivered to each holder of
any Notes an opinion of nationally recognized independent counsel, or
other independent counsel reasonably satisfactory to the Required
Holders, to the effect that all agreements or instruments effecting
such assumption are enforceable in accordance with their terms and
comply with the terms hereof; and
(ii) at the time of and immediately after giving effect to such
transaction, no Default or Event of Default shall result from such
transaction.
Except as provided in the next sentence, no such conveyance, transfer
or lease of substantially all of the assets of a Guarantor shall have the
effect of releasing such Guarantor or any successor Person that shall
theretofore have become such in the manner prescribed in this Section 10.2(a)
from any liability under this Agreement or the Note Guarantee. The Company
shall have the right to cause any Guarantor to be released from liability
under the Note Guarantee if (a) such Guarantor has conveyed, transferred or
leased all or substantially all of its assets to another Person in accordance
with this Section 10.2(a) and such Guarantor becomes dormant or otherwise
stops conducting trading activity and (b) both immediately prior thereto and
after giving effect to such release, no Default or Event of Default exists.
Any such release shall be effective upon the Company providing notice thereof
to each holder, which notice shall state that the foregoing conditions have
been satisfied with respect to such release.
(b) Merger, Consolidation, etc. of the Company.
The Company shall not consolidate with or merge with any other
corporation or convey, transfer or lease substantially all of its assets in a
single transaction or series of transactions to any Person unless:
(i) the successor formed by such consolidation or the survivor
of such merger or the Person that acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety,
as the case may be, shall be a solvent Person organized and existing
under the laws of the United States or any State thereof (including
the District of Columbia) or any political subdivision of any thereof
and, if the Company is not the surviving Person, such Person (x) shall
have executed and delivered to each holder of any Notes its assumption
of the due and punctual performance and observance of each covenant
and condition of this Agreement and the Notes and (y) shall have
caused to be delivered to each holder of any Notes an opinion of
nationally recognized independent counsel, or other independent
counsel reasonably satisfactory to the Required Holders, to the effect
that all agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply with the terms
hereof; and
(ii) at the time of and immediately after giving effect to such
transaction, no Default or Event of Default shall result from such
transaction.
No such conveyance, transfer or lease of substantially all of the
assets of the Company shall have the effect of releasing the Company or any
successor Person that shall theretofore have become such in the manner
prescribed in this Section 10.2(b) from its liability under this Agreement or
the Notes.
10.3 Liens.
(a) Cemex Espana shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien 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 Liens ("Permitted Liens"):
(i) Liens 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 relevant national accounting standards and practices (in
the case of Cemex Espana, Spanish GAAP) shall have been made;
(ii) 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;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security;
(iv) any judgment Lien, unless the judgment it secures shall
not, within 90 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been
discharged within 90 days after the expiration of any such stay;
(v) Liens existing on the date of this Agreement as described in
Schedule 10.3 (Existing Liens) and any Lien renewing or extending such
Lien, provided that the principal amount of Financial Indebtedness
secured by such Lien immediately prior thereto is not increased and
such Lien is not extended to other property;
(vi) any Lien on property acquired by Cemex Espana 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 Lien was not
incurred in anticipation of such acquisition, and any Lien 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 Cemex Espana or any of its
Subsidiaries after the date of this Agreement; provided that (A) any
such Lien permitted pursuant to this clause (vi) 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 Lien,
other property which is an improvement to, or is acquired for specific
use with, such acquired property, (B) if applicable, any such Lien
shall be created within nine months after, in the case of property,
its acquisition, or, in the case of improvements, their completion and
(C) no such Lien shall be made in respect of any indebtedness in
relation to repayment of which recourse may be had to Cemex Espana or
any Subsidiary other than in relation to the item or items as referred
to in clause (vi)(A) above;
(vii) any Lien renewing, extending or refinancing the
indebtedness to which any Lien permitted by clause (vi) above relates;
provided that the principal amount of indebtedness secured by such
Lien immediately prior thereto is not increased and such Lien is not
extended to other property;
(viii) the transfer of shares or any other instrument of title
representing an equity participation in the Asia Fund into a trust,
provided it does not secure Financial Indebtedness;
(ix) any Lien created on shares representing no more than a
Stake in the Capital Stock of any of Cemex Espana'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 Cemex Espana's or any Subsidiary's
interest in such trust, corporation or entity are applied as provided
under Section 10.4; provided that such Lien may not secure Financial
Indebtedness of Cemex Espana or any Subsidiary unless otherwise
permitted under this clause (ix) and that the economic and voting
rights in such Capital Stock is maintained by Cemex Espana in its
Subsidiaries;
(x) any Lien on any asset of a Special Purpose Vehicle in
connection with a Permitted Securitization; and
(xi) in addition to the Liens permitted by the foregoing clauses
(i) through (x), Liens securing obligations of Cemex Espana and its
Subsidiaries, provided that, after giving effect to the incurrence of
such Liens and the concurrent retirement of any Financial Indebtedness
and/or release of Liens, the outstanding principal amount of Priority
Indebtedness does not exceed 15% of the Consolidated Total Assets of
Cemex Espana and its Subsidiaries.
(b) This Section 10.3 shall not apply to any Lien if, the Obligors
have made or caused to be made effective provision whereby the Notes are
secured equally and ratably with, or prior to, the indebtedness secured by such
Lien (other than Permitted Liens) for so long as such indebtedness is so
secured.
10.4 Sales of Assets.
Cemex Espana will not, and will not permit any Subsidiary to, sell,
lease or otherwise dispose of any substantial part (as defined below) of the
assets of Cemex Espana and its Subsidiaries; provided, however, that Cemex
Espana or any Subsidiary may sell, lease or otherwise dispose of assets
constituting a substantial part of the assets of Cemex Espana and its
Subsidiaries (a "Substantial Asset Disposition") if such assets are sold for
at least Fair Market Value and, at such time and after giving effect thereto,
no Default or Event of Default shall have occurred and be continuing, and an
amount equal to the Net Proceeds Amount with respect to such Substantial Asset
Disposition (determined without subtracting therefrom clause (b)(v) of the
definition of "Net Proceeds Amount") shall be used within one year of such
disposition as follows:
(1) to prepay or retire Senior Debt of Cemex Espana or a
Subsidiary, provided that if any Senior Debt is prepaid pursuant to
the terms of this Section 10.4, the Company shall offer to prepay the
Notes in accordance with the terms of Section 8.4 of this Agreement;
or
(2) to the extent not used to prepay Senior Debt as set forth in
clause (1) above, to acquire assets used or useful in carrying on the
business of Cemex Espana and its Subsidiaries and having a Fair Market
Value at least equal to the acquisition price thereof.
For purposes of any determination pursuant to this Section 10.4, the
Company shall be given credit for all amounts applied in accordance with the
preceding clauses (1) and (2) during the applicable one-year period but shall
not be required to apply any amount in accordance with the preceding clauses
(1) and (2) unless the book value of the assets that have been sold or
otherwise disposed of during the applicable one-year period is in excess of
15% of Consolidated Total Assets of Cemex Espana and its Subsidiaries
(determined as set forth below).
If the Company makes an offer to prepay the Notes in accordance with
the terms of Section 8.4 of this Agreement with respect to any Net Proceeds
Amount, to the extent any holder rejects (or is deemed to have rejected) such
offer of prepayment, the Pro Rata Amount allocable to such holder may be
applied to general corporate purposes of Cemex Espana and its Subsidiaries
(including, without limitation, the repayment of Financial Indebtedness of
Cemex Espana and its Subsidiaries and for acquisitions).
As used in this Section 10.4, a sale, lease or other disposition of
assets shall be deemed to be a "substantial part" of the assets of Cemex
Espana and its Subsidiaries if the book value of such assets, when added to
the book value of all other assets sold, leased or otherwise disposed of by
Cemex Espana and its Subsidiaries during the period of 12 consecutive calendar
months immediately preceding such proposed disposition, exceeds 15% of
Consolidated Total Assets of Cemex Espana and its Subsidiaries (determined as
of the beginning of such twelve-month period, but giving effect to any
acquisition of any Subsidiary or all or substantially all the assets of any
Person during such period); provided that in no event will (a) any Excluded
Disposition constitute a sale of a "substantial part" of the assets of Cemex
Espana and its Subsidiaries or (b) the book value of the assets sold in any
Excluded Disposition be counted in determining whether such 15% limit has been
exceeded.
"Excluded Disposition" means any (i) transaction in the ordinary
course of business, (ii) transaction in which Cemex Espana or a Subsidiary is
the purchaser, (iii) transaction in which any assets acquired in an
acquisition of a Person or of a business are sold, transferred or otherwise
disposed of for not less than Fair Market Value to a Person that is not Cemex
Espana or a Subsidiary within one year of such acquisition, (iv) purchase by
Cemex Espana or its Subsidiary of any of its shares or any dividend or other
distribution made or paid by Cemex Espana or its Subsidiary to its
equityholders, (v) payment or transfer of cash, (vi) disposal of assets not
required for the efficient operation of the businesses of Cemex Espana and its
Subsidiaries for not less than Fair Market Value, (vii) disposal of
investments or financial assets on an arm's length basis for Fair Market
Value, (viii) application of the proceeds of any issuance of securities
(whether equity or debt) or other financial obligations for the purpose stated
in the offering memorandum or any other document related to such issuance or
(ix) disposal pursuant to any Permitted Securitization, sale-leaseback
transaction or other asset-backed financing.
10.5 Financial Covenants.
(a) Minimum Consolidated Net Worth. Cemex Espana will not permit
Consolidated Net Worth as of the last day of any Relevant Period to be less
than (euro)2,000,000,000.
(b) Maximum Leverage Ratio. Cemex Espana will not permit the ratio of
Net Borrowings to Adjusted EBITDA calculated on a Rolling Basis as of the last
day of any Relevant Period to exceed 3.5 to 1.0.
(c) Minimum Interest Coverage Ratio. Cemex Espana will not permit the
ratio of EBITDA to Finance Charges calculated on a Rolling Basis as of the last
day of any Relevant Period to be less than 2.5 to 1.0.
10.6 Limitation on Non-Guarantor Financial Indebtedness.
Cemex Espana will not, at any time, permit any Subsidiary (other than
the Company) to, directly or indirectly, create, incur, assume, guaranty, have
outstanding or otherwise become or remain directly or indirectly liable with
respect to, any Financial Indebtedness other than:
(a) Financial Indebtedness arising under the Note Guarantee;
(b) Financial Indebtedness of a Subsidiary that is an Excluded
Subsidiary Guarantor;
(c) Financial Indebtedness of a Subsidiary outstanding on the date
hereof and disclosed on Schedule 5.15 (Existing Financial Indebtedness), and
any Financial Indebtedness extending the maturity of, or refunding or
refinancing, the same, provided that (i) the principal amount of such Financial
Indebtedness shall not be increased above the principal amount thereof
outstanding immediately prior to such extension, refunding or refinancing and
(ii) the aggregate amount of all Financial Indebtedness that has been extended,
refunded or refinanced under this clause (c) shall not exceed $100,000,000 (or
the equivalent thereof if denominated in another currency) (for the avoidance
of doubt, it is understood that (x) if any such Financial Indebtedness is
successively extended, refinanced or refunded, only the Financial Indebtedness
outstanding after giving effect to all such successive extensions, refinancings
and refundings shall be counted against the foregoing amount and (y) any
Financial Indebtedness incurred in a currency other than Dollars pursuant to
this clause (c) shall continue to be permitted under this clause (c),
notwithstanding any fluctuation in currency values, as long as the outstanding
principal amount of such Financial Indebtedness (denominated in its original
currency) does not exceed the maximum amount of such Financial Indebtedness
(denominated in such currency) permitted to be outstanding on the date such
Financial Indebtedness was incurred);
(d) Financial Indebtedness of a Subsidiary owed to Cemex Espana, the
Company or another Subsidiary;
(e) Financial Indebtedness of a Subsidiary that is (i) outstanding at
the time such Subsidiary becomes a Subsidiary or (ii) contractually required to
be incurred by such Subsidiary at such time, provided that such Financial
Indebtedness shall not have been incurred in contemplation of such Subsidiary
becoming a Subsidiary;
(f) any Financial Indebtedness extending the maturity of the Financial
Indebtedness referred to in clause (e) above, or any refunding or refinancing
of the same, provided that the principal amount of such Financial Indebtedness
shall not be increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or refinancing;
(g) Financial Indebtedness of a Subsidiary which (i) has been formed
for the purpose of, and whose primary activities are, the issuance or other
incurrence of debt obligations to Persons other than Affiliates of Cemex
Espana, and the lending or other advance of the net proceeds of such debt
obligations (whether directly or indirectly) to the Company or an Excluded
Subsidiary Guarantor, and (ii) has no significant assets other than promissory
notes and other contract rights in respect of funds advanced to the Company or
the Excluded Subsidiary Guarantors;
(h) Financial Indebtedness of a Subsidiary incurred pursuant to or in
connection with any pooling agreements in place within a bank or financial
institution, but only to the extent of offsetting credit balances of Cemex
Espana or its Subsidiaries pursuant to such pooling arrangement; and
(i) Financial Indebtedness of a Subsidiary in addition to that
otherwise permitted by the foregoing provisions of this Section 10.6, provided
that on the date the Subsidiary incurs or otherwise becomes liable with respect
to such Financial Indebtedness and immediately after giving effect thereto and
the concurrent retirement of any Financial Indebtedness and/or release of
Liens, the aggregate outstanding principal amount of all Priority Indebtedness
does not exceed 15% of Consolidated Total Assets of Cemex Espana and its
Subsidiaries.
10.7 Notarization
(a) Subject to clause (b) below, Cemex Espana will not (and will not
permit its Subsidiaries to) permit any unsecured Financial Indebtedness of
Cemex Espana or its Subsidiaries to be notarized as a Spanish Public Document
(any such notarization, a "Notarization"), other than the following permitted
Notarizations ("Permitted Notarizations"):
(i) any existing Notarization listed in Schedule 10.7 (Existing
Notarizations) and any amendments or modifications thereof, provided
that any such amendment or modification shall not increase the
principal amount of such Financial Indebtedness, extend the maturity
thereof or refinance such Financial Indebtedness;
(ii) Notarizations with the prior written consent of the
Required Holders;
(iii) any Notarization securing indebtedness, provided that
immediately after giving effect to such Notarization and the
concurrent retirement of any Financial Indebtedness and/or release of
Liens, the aggregate outstanding principal amount of all Priority
Indebtedness does not exceed 15% of Consolidated Total Assets of Cemex
Espana and its Subsidiaries; and
(iv) any Notarizations 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) This Section 10.7 shall not apply if Cemex Espana, concurrently
with any such Notarization (other than a Permitted Notarization) referred to in
clause (a) above and at its own cost and expense, causes this Agreement and the
Note Guarantee of Cemex Espana to be the subject of a Notarization. Cemex
Espana shall give each holder at least 30 days' written notice prior to the
Notarization of any Financial Indebtedness other than a Permitted Notarization.
Such notice shall instruct the holders as to the procedures to be followed in
order for this Agreement and the Note Guarantee of Cemex Espana of the Notes to
be notarized. Each holder shall, at the expense of Cemex Espana, take such
actions as may be reasonably requested by Cemex Espana and are necessary or
required in obtaining such Notarization. Cemex Espana shall have no obligation
to notarize Financial Indebtedness held by any Person (including a holder) if
such Person does not take such actions as may be reasonably requested by Cemex
Espana in order for Cemex Espana to satisfy its obligations under this Section
10.7(b). If requested in writing by the Required Holders, Cemex Espana shall,
prior to the time of any such Notarization, deliver to the holders an opinion
of nationally recognized Spanish counsel to the effect that, upon the
Notarization of this Agreement and Cemex Espana's Note Guarantee of the Notes
required to be Notarized, such Note Guarantee shall, in the event of a
bankruptcy of Cemex Espana, rank in right of payment equal and pro rata with or
senior to all other unsecured Financial Indebtedness of Cemex Espana Notarized
concurrently therewith, except for obligations mandatorily preferred by law
applying to companies generally (including but not limited to under paragraph
1, 2 or 3 of Article 913 of the Spanish Commercial Code (Codigo de Comercio),
Article 914 of the Spanish Commercial Code (Codigo de Comercio), Article 32 of
the Spanish Workers' Statute (Estatuto de los Trabajadores), Article 71 of the
Spanish General Taxation Law (Ley General Tributaria) and Article 22 of the
Spanish General Law on Social Security (Ley General de la Seguridad Social).
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions
or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or
Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any
Note for more than five Business Days after the same becomes due and
payable; or
(c) Cemex Espana or the Company defaults in the performance of
or compliance with any term contained in Section 7.1(d), 10.2, 10.4,
10.5, 10.6 or 10.7 and such default is not remedied within 10 Business
Days after the earlier of (i) a Senior Financial Officer obtaining
actual knowledge of such default and (ii) the Company receiving
written notice of such default from any holder of a Note (any such
written notice to be identified as a "notice of default" and to refer
specifically to this clause (c) of Section 11); or
(d) Cemex Espana or the Company defaults in the performance of
or compliance with any term contained herein (other than those
referred to in clauses (a), (b) and (c) of this Section 11) and such
default is not remedied within 30 days after the earlier of (i) a
Senior Financial Officer obtaining actual knowledge of such default
and (ii) the Company receiving written notice of such default from any
holder of a Note (any such written notice to be identified as a
"notice of default" and to refer specifically to this clause (d) of
Section 11); or
(e) any representation or warranty made in writing by or on
behalf of Cemex Espana or the Company or by any officer of Cemex
Espana or the manager of the Company in this Agreement or in any
writing furnished in connection with the transactions contemplated
hereby proves to have been false or incorrect in any material respect
on the date as of which made; or
(f) (i) Cemex Espana or any Subsidiary is in default (as
principal or as guarantor or other surety) in the payment of any
principal or premium or make-whole amount or interest on any Financial
Indebtedness in an aggregate principal amount of at
least(euro)27,500,000 (or the equivalent thereof, as of any date of
determination, in any other currency) other than Financial
Indebtedness outstanding under this Agreement, the Notes or the Note
Guarantee, when the same becomes due and payable (whether by way of
scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the relevant agreement or instrument
relating to such Financial Indebtedness or (ii) any other event shall
occur or condition shall exist under any agreement or instrument
relating to any such Financial Indebtedness beyond any period of grace
provided with respect thereto, if the effect of such event or
condition is to accelerate the maturity of such Financial Indebtedness
or (iii) any such Financial Indebtedness shall be declared to be due
and payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required payment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such
Financial Indebtedness shall be required to be made, in each case
prior to the stated maturity thereof; or
(g) the Company, Cemex Espana or any of its Material
Subsidiaries (i) is generally not paying, or admits in writing its
inability to pay, its debts as they become due, (ii) files, or
consents by answer or otherwise to the filing against it of, a
petition for relief or reorganization or arrangement or any other
petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar
law of any jurisdiction, (iii) makes an assignment for the benefit of
its creditors, (iv) consents to the appointment of a custodian,
receiver, trustee or other officer with similar powers with respect to
it or with respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated or (vi) takes corporate
action for the purpose of any of the foregoing; or
(h) a court or governmental authority of competent jurisdiction
enters an order appointing, without consent by the Company, Cemex
Espana or any of its Material Subsidiaries, a custodian, receiver,
trustee or other officer with similar powers with respect to it or
with respect to any substantial part of its property, or constituting
an order for relief or approving a petition for relief or
reorganization or any other petition in bankruptcy or for liquidation
or to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or liquidation
of the Company, Cemex Espana or any of its Material Subsidiaries, or
any such petition shall be filed against the Company, Cemex Espana or
any of its Material Subsidiaries and such petition shall not be
dismissed within 90 days; or
(i) a final judgment or judgments for the payment of money
aggregating in excess of(euro)27,500,000 (or the equivalent thereof if
denominated in a currency other than euro) (excluding in the
calculation of such(euro)27,500,000 any final judgment to the extent,
but only to the extent, such judgment will be covered by payments from
insurance maintained by Cemex Espana or any Subsidiary (x) in respect
of which insurance the issuer thereof has agreed, in writing, to make
such payments in respect of such judgment and (y) the issuer of which
insurance is an independent commercial insurer that, in the good faith
opinion of the Board of Directors of Cemex Espana, is capable of
discharging its payment obligations in connection with such insurance)
are rendered against one or more of Cemex Espana and the Subsidiaries
and which judgments are not, within 90 days after entry thereof,
bonded, discharged or stayed pending appeal, or are not discharged
within 90 days after the expiration of such stay; or
(j) if (i) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is
sought or granted under section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is reasonably expected
to be filed with the PBGC or the PBGC shall have instituted
proceedings under ERISA section 4042 to terminate or appoint a trustee
to administer any Plan or the PBGC shall have notified Cemex Espana or
any ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) Cemex Espana or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, (iv) Cemex Espana or any
ERISA Affiliate withdraws from any Multiemployer Plan or (v) Cemex
Espana or any Subsidiary establishes or amends any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides
post-employment welfare benefits in a manner that would increase the
liability of Cemex Espana or any Subsidiary thereunder; and any such
event or events described in clauses (i) through (v) above, either
individually or together with any other such event or events, would
reasonably be expected to have a Material Adverse Effect; or
(k) the Note Guarantee shall cease to be in full force and
effect with respect to Cemex Espana or any other Guarantor; or Cemex
Espana or any other Guarantor (or any Person by, through or on behalf
of Cemex Espana or such other Guarantor) shall contest in any manner
the validity, binding nature or enforceability of the Note Guarantee.
12. REMEDIES ON DEFAULT, ETC.
12.1 Acceleration.
(a) If an Event of Default with respect to the Company described in
clause (g) or (h) of Section 11 (other than an Event of Default described in
clause (g)(i) or described in clause (g)(vi) by virtue of the fact that such
clause encompasses clause (g)(i)) has occurred, all the Notes then outstanding
shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, the
Required Holders of the Notes at the time outstanding may at any time at its or
their option, by notice or notices to the Company, declare all the Notes then
outstanding to be immediately due and payable.
(c) If any Event of Default described in clause (a) or (b) of Section
11 has occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the Notes held by it
or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1,
whether automatically or by declaration, such Notes will forthwith mature and
the entire unpaid principal amount of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount determined in respect of
such principal amount (to the full extent permitted by applicable law), shall
all be immediately due and payable, in each and every case without presentment,
demand, protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment by the
Company (except as herein specifically provided for) and that the provision for
payment of a Make-Whole Amount by the Company, in the event that the Notes are
prepaid or are accelerated as a result of an Event of Default, is intended to
provide compensation for the deprivation of such right under such
circumstances.
12.2 Other Remedies.
If any Default or Event of Default has occurred and is continuing, and
irrespective of whether any Notes have become or have been declared immediately
due and payable under Section 12.1, the holder of any Note at the time
outstanding may proceed to protect and enforce the rights of such holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any Note, or for
an injunction against a violation of any of the terms hereof or thereof, or in
aid of the exercise of any power granted hereby or thereby or by law or
otherwise.
12.3 Rescission.
At any time after any Notes have been declared due and payable
pursuant to clause (b) or (c) of Section 12.1, the Required Holders by written
notice to the Company may rescind and annul any such declaration and its
consequences if (a) the Company has paid all overdue interest on the Notes, all
principal of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 17 and (c)
no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and annulment under this Section
12.3 will extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
12.4 No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any holder of any
Note in exercising any right, power or remedy shall operate as a waiver thereof
or otherwise prejudice such holder's rights, powers or remedies. No right,
power or remedy conferred by this Agreement or by any Note upon any holder
thereof shall be exclusive of any other right, power or remedy referred to
herein or therein or now or hereafter available at law, in equity, by statute
or otherwise. Without limiting the obligations of the Company under Section 15,
the Company will pay to the holder of each Note on demand such further amount
as shall be sufficient to cover all costs and expenses of such holder incurred
in any enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1 Registration of Notes.
The Company shall keep at its principal executive office a register
for the registration and registration of transfers of Notes. The name and
address of each holder of one or more Notes, each transfer thereof and the
name and address of each transferee of one or more Notes shall be registered
in such register. Prior to due presentment for registration of transfer, the
Person in whose name any Note shall be registered shall be deemed and treated
as the owner and holder thereof for all purposes hereof, and the Company shall
not be affected by any notice or knowledge to the contrary. The Company shall
give to any holder of a Note that is an Institutional Investor promptly upon
request therefor a complete and correct copy of the names and addresses of all
registered holders of Notes.
13.2 Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive office of the
Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of such
Note or his attorney duly authorized in writing and accompanied by the address
for notices of each transferee of such Note or part thereof), the Company
shall execute and deliver, at the Company's expense (except as provided
below), one or more new Notes (as requested by the holder thereof) of the same
tranche in exchange therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such new Note shall be
payable to such Person as such holder may request and shall be substantially
in the form of the Note of such tranche originally issued hereunder. Each such
new Note shall be dated and bear interest from the date to which interest
shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Company may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $1,000,000, provided that if
necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than $1,000,000.
Any transferee, by its acceptance of a Note registered in its name (or the
name of its nominee), shall be deemed to have made the representations set
forth in Sections 6.1 and 6.2.
13.3 Replacement of Notes.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice
from such Institutional Investor of such ownership and such loss, theft,
destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such
Note is, or is a nominee for, an original Purchaser or another holder
of a Note with a minimum net worth of at least $50,000,000, such
Person's own unsecured agreement of indemnity shall be deemed to be
satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a
new Note of the same tranche, dated and bearing interest from the date to
which interest shall have been paid on such lost, stolen, destroyed or
mutilated Note or dated the date of such lost, stolen, destroyed or mutilated
Note if no interest shall have been paid thereon.
14. PAYMENTS ON NOTES.
14.1 Place of Payment.
Subject to Section 14.2, payments of principal, Make-Whole Amount, if
any, and interest becoming due and payable on the Notes shall be made in New
York, New York at Citibank, N.A, 111 Wall Street, 14th Floor, New York, New
York 10043, Corporate Agency and Trust Department. The Company may at any
time, by notice to each holder of a Note, change the place of payment of the
Notes so long as such place of payment shall be either the principal office of
the Company in such jurisdiction or the principal office of a bank or trust
company in the United States.
14.2 Home Office Payment.
So long as any Purchaser or a nominee of such Purchaser shall be the
holder of any Note, and notwithstanding anything contained in Section 14.1 or
in such Note to the contrary, the Company will pay all sums becoming due on
such Note for principal, Make-Whole Amount, if any, and interest by the method
and at the address specified for such purpose below such Purchaser's name on
Schedule A, or by such other method or at such other address as such Purchaser
shall have from time to time specified to the Company in writing for such
purpose, without the presentation or surrender of such Note or the making of
any notation thereon, except that upon written request of the Company made
concurrently with or reasonably promptly after payment or prepayment in full
of any Note, such Purchaser shall surrender such Note for cancellation,
reasonably promptly after any such request, to the Company at its principal
executive office or at the place of payment most recently designated by the
Company pursuant to Section 14.1. Prior to any sale or other disposition of
any Note held by any Purchaser or its nominee, such Purchaser will, at its
election, either endorse thereon the amount of principal paid thereon and the
last date to which interest has been paid thereon or surrender such Note to
the Company in exchange for a new Note or Notes pursuant to Section 13.2. The
Company will afford the benefits of this Section 14.2 to any Institutional
Investor that is the direct or indirect transferee of any Note purchased by
any Purchaser under this Agreement and that has made the same agreement
relating to such Note as such Purchaser has made in this Section 14.2.
14.3 Tax Indemnification.
(a) Payments Free and Clear. All payments to be made by the Company
under this Agreement and the Notes will be made free and clear of, and without
withholding or deduction for or on account of, any present or future taxes,
levies, imposts, duties, charges, assessments or fees of whatever nature, but
excluding franchise taxes and taxes imposed on or measured by any holder's net
income or receipts (such non-excluded items, "Related Taxes") imposed or levied
by or on behalf of The Netherlands, the United States or any jurisdiction from
or through which any amount is paid by the Company pursuant to the terms of
this Agreement or the Notes (or any political subdivision or taxing authority
of or in any such jurisdiction) (a "Taxing Jurisdiction"), unless the
withholding or deduction of any such Related Tax is required by law.
(b) Gross-Up, etc. If any deduction or withholding for any present or
future Related Tax of a Taxing Jurisdiction shall at any time be required in
respect of any amount to be paid by the Company under this Agreement or the
Notes, the Company will promptly (i) pay over to the government or taxing
authority of the Taxing Jurisdiction imposing such Related Tax the full amount
required to be deducted or withheld by the Company (including the full amount
required to be deducted or withheld from or otherwise paid by the Company in
respect of any Additional Payment required to be made pursuant to clause (ii)
of this Section 14.3(b)) and (ii) except as expressly provided below, pay to
each holder entitled under this Agreement to receive the payment from which the
amount referred to in the foregoing clause (i) has been so deducted or withheld
such additional amount as is necessary in order that the amount received by
such holder after any required deduction or withholding of Related Tax
(including, without limitation, any required deduction, withholding or other
payment of Related Tax on or with respect to such additional amount) shall
equal the amount such holder would have received had no such deduction,
withholding or other payment of Related Tax been paid (the "Additional
Payment"), and if any holder pays any amount in respect of any Related Tax on
any payment due from the Company hereunder or under the Notes, or penalties or
interest thereon, then the Company shall reimburse such holder for that payment
upon demand, provided that no payment of any Additional Payment, or of any such
reimbursement in respect of any such payment made by any such holder, shall be
required to be made for or on account of:
(A) any Related Tax that would not have been imposed but for the
existence of any present or former connection between such holder and
the Taxing Jurisdiction or any territory or possession or area subject
to the jurisdiction of the Taxing Jurisdiction, other than the mere
holding of the relevant Note, including, without limitation, such
holder's being or having been a citizen or resident thereof, or being
or having been present or engaged in a trade or business therein or
having an establishment therein;
(B) any such holder that is not a resident of the United States
of America or, with respect to any payment hereunder or under the
Notes owing to such holder, all or any part of which represents income
that is not subject to United States tax as income of a resident of
the United States of America to the extent that, had such holder been
a resident of the United States of America or had the payment been so
subject to United States tax, or had the payment been made to a
location within the United States of America, the provisions of a
statute, treaty or regulation of the Taxing Jurisdiction would have
enabled an exemption to be claimed from the Related Tax in respect of
which an Additional Payment would otherwise have been payable; or
(C) any combination of the items or conditions described in
clause (A) or clause (B) of this Section 14.3(b); and
provided further that the Company shall not be obliged to pay any Additional
Payment to any holder of a Note in respect of Related Taxes to the extent such
Related Taxes exceed the Related Taxes that would have been payable but for
the delay or failure by such holder (after receiving a written request from
Cemex Espana or the Company to make such filing and including copies (together
with instructions in English) of forms, certificates, documents, applications
or other reasonably required evidence (collectively, "Forms") to be filed) in
the filing with an appropriate Governmental Authority or otherwise of Forms
required to be filed by such holder to avoid or reduce such Related Taxes and
that in the case of any of the foregoing would not result in any confidential
income tax return information being revealed, either directly or indirectly,
to any Person and such delay or failure could have been lawfully avoided by
such holder, provided that such holder shall be deemed to have satisfied the
requirements of this proviso upon the good faith completion and submission of
such Forms as may be specified in a written request of the Company no later
than 45 days after receipt by such holder of such written request.
(c) Official Receipt. If the Company shall make any such Additional
Payment, it will promptly furnish each holder receiving such Additional Payment
under this Section 14.3 an official receipt issued by the relevant taxation or
other authorities involved for all amounts deducted or withheld as aforesaid.
(d) Other. Each holder agrees to use its best efforts to comply (after
a reasonable period to respond) with a written request of the Company delivered
to such holder to provide information (other than any confidential or
proprietary information) concerning the nationality, residence or identity of
such holder, and to make such declaration or other similar claim or reporting
requirement regarding such information (copies of the forms of which
declaration, claim or reporting requirement shall have been provided to such
holder by the Company), that is required by a statute, treaty or regulation of
the Taxing Jurisdiction as a precondition to exemption from all or part of any
Related Tax. The Company agrees to reimburse each holder for such holder's
reasonable out-of-pocket expenses, if any, incurred in complying with any such
request of such Person.
(e) Tax Refund. If the Company makes an Additional Payment under this
Section 14.3 for the account of any Person and such Person is entitled to a
refund of any portion of the tax (a "Tax Refund"), to which such payment is
attributable, and such Tax Refund may be obtained by filing one or more Forms,
then such Person shall after receiving a written request therefore from the
Company (which request shall specify in reasonable detail the Forms to be
filed), file such Forms. If such Person subsequently receives such a Tax
Refund, and such Person is readily able to identify the Tax Refund as being
attributable to the tax with respect to which an Additional Payment was made,
then such Person shall reimburse the Company such amount as such Person shall
determine acting in good faith to be the proportion of the Tax Refund, together
with any interest received thereon, attributable to such Additional Payment as
will leave such Person after the reimbursement (including such interest) in no
better or worse position than it would have been if the Additional Payment had
not been required. Nothing in this clause (e) shall obligate any holder to
disclose any information regarding its tax affairs or computations to the
Company.
(f) Survival. The obligations of the Company and the holders under
this Section 14.3 shall survive the payment in full of the Notes and the
termination of this Agreement.
14.4 Currency of Payment.
(a) Payment in Dollars. All payments under the Notes shall be made in
Dollars.
(b) Certain Expenses. If any expense required to be reimbursed
pursuant to this Agreement or the Notes is originally incurred in a currency
other than Dollars, the Company shall nonetheless make reimbursement of that
expense in Dollars, in an amount equal to the amount in Dollars that would have
been required for the Person that incurred such expense to have purchased, in
accordance with normal banking procedures, the sum paid in such other currency
(after any premium and costs of exchange) on the day that expense was
originally incurred.
(c) Payments Not in Dollars. To the fullest extent permitted by
applicable law, the obligations of the Company in respect of any amount due
under or in respect of this Agreement and the Notes shall (notwithstanding any
payment in any other currency, whether as a result of any judgment or order or
the enforcement thereof, the realization of any security, the liquidation of
any Obligor, any voluntary payment by any Obligor or otherwise) be discharged
only to the extent of the amount in Dollars that each holder entitled to
receive such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency (after any premium and costs
of exchange) on the Business Day immediately following the day on which such
holder receives such payment. If the amount in Dollars that may be so purchased
for any reason falls short of the amount originally due, the Company shall
indemnify and save harmless such holder from and against all loss or damage
arising out of or as a result of such deficiency. This indemnity shall
constitute an obligation separate and independent from the other obligations
contained in this Agreement and the Notes, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted
by such holder from time to time and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of an
amount due under this Agreement or the Notes or under any judgment or order.
15. EXPENSES, ETC.
15.1 Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated,
the Company will pay all reasonable costs and expenses (including reasonable
attorneys' fees of one special U.S. counsel and one special Spanish counsel for
the Purchasers, provided that, as to the costs and expenses of Spanish counsel,
Cemex Espana and the holders shall have agreed upon the scope of work to be
done by such Spanish counsel prior to its engagement) incurred by the
Purchasers in connection with such transactions and in connection with any
amendments, waivers or consents under or in respect of this Agreement or the
Notes (whether or not such amendment, waiver or consent becomes effective),
including, without limitation: (a) the costs and expenses incurred in enforcing
or defending (or determining whether or how to enforce or defend) any rights
under this Agreement or the Notes or in responding to any subpoena or other
legal process or informal investigative demand issued in connection with this
Agreement or the Notes, or by reason of being a holder of any Note; (b) the
costs and expenses, including financial advisors' fees, incurred in connection
with the insolvency or bankruptcy of the Company or any Subsidiary or in
connection with any work-out or restructuring of the transactions contemplated
hereby and by the Notes; and (c) the fees and costs incurred in connection with
the initial filing of this Agreement and all related documents and financial
information, and all subsequent annual and interim filings of documents and
financial information related to this Agreement (provided the Company shall not
be required to pay more than $2,500 per year in respect of subsequent annual
and interim filings), with the SVO. The Company will pay, and will save each
Purchaser and each other holder of a Note harmless from, all claims in respect
of the fees, costs or expenses, if any, of brokers and finders (other than
those retained by any Purchaser).
15.2 Survival.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the termination of this
Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the related Notes, the purchase or
transfer by any Purchaser of any such Note or portion thereof or interest
therein and may be relied upon by any subsequent holder of any such Note,
regardless of any investigation made at any time by or on behalf of any
Purchaser or any other holder of any such Note. All statements contained in any
certificate or other instrument delivered by or on behalf of the Company or
Cemex Espana pursuant to this Agreement shall be deemed representations and
warranties of the Company and Cemex Espana under this Agreement. Subject to the
preceding sentence, this Agreement and the Notes embody the entire agreement
and understanding between the Purchasers and the Company and Cemex Espana and
supersede all prior agreements and understandings relating to the subject
matter hereof.
17. AMENDMENT AND WAIVER.
17.1 Requirements. This Agreement, the Note Guarantee and the Notes
may be amended, and the observance of any term hereof or of the Notes may be
waived (either retroactively or prospectively), with (and only with) the
written consent of Cemex Espana, the Company and the Required Holders, except
that (a) no amendment or waiver of any of the provisions of Section 1, 2, 3, 4,
5, 6 or 21 hereof, or any defined term (as it is used in any such Section),
will be effective as to any holder unless consented to by such holder in
writing and (b) no such amendment or waiver may, without the written consent of
the holder of each Note at the time outstanding affected thereby, (i) subject
to the provisions of Section 12 relating to acceleration or rescission, change
the amount or time of any prepayment or payment of principal of, or reduce the
rate or change the time of payment or method of computation of interest or of
the Make-Whole Amount on, the Notes, (ii) change the percentage of the
principal amount of the Notes the holders of which are required to consent to
any such amendment or waiver or (iii) amend Section 8, 11(a), 11(b), 12, 17 or
20.
17.2 Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 17 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause
to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder as
consideration for or as an inducement to the entering into by any holder of any
waiver or amendment of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently granted, on the
same terms, ratably to each holder then outstanding even if such holder did not
consent to such waiver or amendment.
17.3 Binding Effect, etc.
Any amendment or waiver consented to as provided in this Section 17
applies equally to all holders of Notes and is binding upon them and upon each
future holder of any Note and upon Cemex Espana and the Company without regard
to whether such Note has been marked to indicate such amendment or waiver. No
such amendment or waiver will extend to or affect any obligation, covenant,
agreement, Default or Event of Default not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the Company
and the holder of any Note nor any delay in exercising any rights hereunder or
under any Note shall operate as a waiver of any rights of any holder of such
Note. As used herein, the term "this Agreement" and references thereto shall
mean this Agreement as it may from time to time be amended or supplemented.
17.4 Notes held by Company, etc.
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver or consent to be
given under this Agreement or the Notes, or have directed the taking of any
action provided herein or in the Notes to be taken upon the direction of the
holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by the Company or any of
its Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), (b) by registered or certified mail with return receipt
requested (postage prepaid) or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(i) if to any Purchaser or its nominee, to such Purchaser or
nominee at the address specified for such communications on Schedule
A, or at such other address as such Purchaser or nominee shall have
specified to the Company and Cemex Espana in writing,
(ii) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Company in
writing or
(iii) if to the Company or Cemex Espana, to the Company or Cemex
Espana at Caleruega 67- 5, 28033 Madrid, Spain, Facsimile number:+
3491 3535065/66, Phone number: + 3491 3535055, to the attention of
Santiago Puelles/Francisco Lopez, with a copy to Cemex Espana at Ave.
Ricardo Margain Zozaya, n(0) 325, Col. Valle del Campestre, Garza
Garcia NL, 66220 Mexico, Facsimile number: +52 81 8888 4428, to the
attention of Francisco Contreras, or at such other address as the
Company or Cemex Espana shall have specified to the holder of each
Note in writing.
Notices under this Section 18 will be deemed given only when actually
received.
Each document, instrument, financial statement, report, notice, Form
or other communication delivered in connection with this Agreement shall be in
English or accompanied by an English translation thereof, which translation
shall be certified by a Responsible Officer.
The Financing Documents have been prepared and signed in English and
the parties hereto agree that the English versions of this Agreement and the
other Financing Documents shall be the only versions valid for the purpose of
the interpretation and construction hereof and thereof notwithstanding the
preparation of any translation into another language of any Financing Document,
whether official or otherwise or whether prepared in relation to any
proceedings with may be brought in the Kingdom of Spain or The Netherlands in
respect of any Financing Document.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by any Purchaser at the Closing (except the
Notes themselves) and (c) financial statements, certificates and other
information previously or hereafter furnished to any Purchaser, may be
reproduced by such Purchaser by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and such Purchaser
may destroy any original document so reproduced. Each of Cemex Espana and the
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by such Purchaser in
the regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
This Section 19 shall not prohibit Cemex Espana, the Company or any other
holder from contesting any such reproduction to the same extent that it could
contest the original, or from introducing evidence to demonstrate the
inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to any Purchaser by or on behalf of Cemex Espana or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by such
Purchaser as being confidential information of Cemex Espana or any Subsidiary;
provided that such term does not include information that (a) was publicly
known or otherwise known to such Purchaser prior to the time of such
disclosure, (b) subsequently becomes publicly known through no act or omission
by such Purchaser or any Person acting on the behalf of such Purchaser, (c)
otherwise becomes known to such Purchaser other than through disclosure by
Cemex Espana or any Subsidiary or (d) constitutes financial statements
delivered to such Purchaser under Section 7.1 that are otherwise publicly
available. Each Purchaser will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by such
Purchaser in good faith to protect confidential information of third parties
delivered to such Purchaser; provided that such Purchaser may deliver or
disclose Confidential Information to (i) such Purchaser's directors, trustees,
officers, employees, agents, attorneys and affiliates (to the extent such
disclosure reasonably relates to the administration of the investment
represented by such Purchaser's Notes), (ii) such Purchaser's financial
advisors and other professional advisors who agree to hold confidential the
Confidential Information substantially in accordance with the terms of this
Section 20, (iii) any other holder of any Note, (iv) any Institutional Investor
to which such Purchaser sells or offers to sell such Note or any part thereof
or any participation therein (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of this
Section 20), (v) any Person from which such Purchaser offers to purchase any
security of the Company (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of this
Section 20), (vi) any federal or state regulatory authority having jurisdiction
over such Purchaser, (vii) the National Association of Insurance Commissioners
or any similar organization, or any nationally recognized rating agency that
requires access to information about such Purchaser's investment portfolio or
(viii) any other Person to which such delivery or disclosure may be necessary
or appropriate (w) to effect compliance with any law, rule, regulation or order
applicable to such Purchaser, (x) in response to any subpoena or other legal
process, (y) in connection with any litigation to which such Purchaser is a
party or (z) if an Event of Default has occurred and is continuing, to the
extent such Purchaser may reasonably determine such delivery and disclosure to
be necessary or appropriate in the enforcement or for the protection of the
rights and remedies under such Purchaser's Notes and this Agreement. Each
holder of a Note, by its acceptance of a Note, will be deemed to have agreed to
be bound by and to be entitled to the benefits of this Section 20 as though it
were a party to this Agreement. On reasonable request by Cemex Espana in
connection with the delivery to any holder of a Note of information required to
be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with Cemex Espana embodying the provisions
of this Section 20. Notwithstanding anything to the contrary set forth herein
or in any other written or oral understanding or agreement to which the parties
hereto are parties or by which they are bound, the parties to this Agreement
acknowledge and agree that (i) any obligations of confidentiality contained
herein and therein do not apply and have not applied from the commencement of
discussions between the parties to the tax treatment and tax structure of the
Notes (and any related transactions or arrangements) and (ii) each Purchaser
(and each of its employees, representatives or other agents) may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax
structure of the Notes and all materials of any kind (including opinions or
other tax analyses) that are provided to such Purchaser relating to such tax
treatment and tax structure, all within the meaning of the U.S. Department of
the Treasury Regulations Section 1.6011-4.
21. SUBSTITUTION OF PURCHASER.
Each Purchaser shall have the right to substitute any one of such
Purchaser's Affiliates as the purchaser of the Notes that such Purchaser has
agreed to purchase hereunder, by written notice to the Company, which notice
shall be signed by both such Purchaser and such Affiliate, shall contain such
Affiliate's agreement to be bound by this Agreement and shall contain a
confirmation by such Affiliate of the accuracy with respect to it of the
representations set forth in Section 6. Upon receipt of such notice, wherever
the word "Purchaser" is used in this Agreement (other than in this Section 21),
such words shall be deemed to refer to such Affiliate in lieu of such
Purchaser. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to such Purchaser all of the
Notes then held by such Affiliate, upon receipt by the Company of notice of
such transfer, wherever the word "Purchaser" is used in this Agreement (other
than in this Section 21), such words shall no longer be deemed to refer to such
Affiliate, but shall refer to such Purchaser, and such Purchaser shall have all
the rights of an original holder of the Notes under this Agreement.
22. MISCELLANEOUS.
22.1 Successors and Assigns.
All covenants and other agreements contained in this Agreement by or
on behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any
subsequent holder of a Note) whether so expressed or not.
22.2 Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-Whole Amount or interest
on any Note that is due on a date other than a Business Day shall be made on
the next succeeding Business Day without including the additional days elapsed
in the computation of the interest payable on such next succeeding Business
Day.
22.3 Severability.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.4 Construction.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant
contained herein, so that compliance with any one covenant shall not (absent
such an express contrary provision) be deemed to excuse compliance with any
other covenant. Where any provision herein refers to action to be taken by any
Person, or that such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
22.5 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
22.6 Governing Law.
This Agreement shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the law of the State of New
York excluding choice-of-law principles of the law of such State that would
require the application of the laws of a jurisdiction other than such State.
22.7 Jurisdiction; Service of Process.
EACH OF CEMEX ESPANA AND THE COMPANY HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND/OR ANY OTHER FINANCING DOCUMENT, OR ANY ACTION
OR PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT IN RESPECT OF ANY
BREACH HEREUNDER OR UNDER ANY OTHER FINANCING DOCUMENT, BROUGHT BY ANY HOLDER
OF A NOTE AGAINST CEMEX ESPANA OR THE COMPANY OR ANY OF THEIR RESPECTIVE
PROPERTIES, MAY BE BROUGHT BY SUCH HOLDER OF A NOTE IN THE COURTS OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY NEW YORK
STATE COURT SITTING IN NEW YORK CITY, AS SUCH HOLDER OF A NOTE MAY IN ITS SOLE
DISCRETION ELECT, AND BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT EACH OF
CEMEX ESPANA AND THE COMPANY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF EACH SUCH COURT AND AGREES THAT PROCESS SERVED
EITHER PERSONALLY OR BY REGISTERED MAIL ON CEMEX ESPANA, THE COMPANY OR A
DESIGNATED AGENT SHALL CONSTITUTE, TO THE EXTENT PERMITTED BY LAW, ADEQUATE
SERVICE OF PROCESS IN ANY SUCH SUIT, AND EACH OF CEMEX ESPANA AND THE COMPANY
IRREVOCABLY WAIVES AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR
OTHERWISE, ANY CLAIM THAT IT IS NOT SUBJECT TO THE JURISDICTION OF ANY SUCH
COURT. RECEIPT OF PROCESS SO SERVED SHALL BE CONCLUSIVELY PRESUMED AS EVIDENCED
BY A DELIVERY RECEIPT FURNISHED BY THE UNITED STATES POSTAL SERVICE OR ANY
COMMERCIAL DELIVERY SERVICE. WITHOUT LIMITING THE FOREGOING, EACH OF CEMEX
ESPANA AND THE COMPANY HEREBY APPOINTS, IN THE CASE OF ANY SUCH ACTION OR
PROCEEDING BROUGHT IN THE COURTS OF OR IN THE STATE OF NEW YORK, CT CORPORATION
SYSTEM, 111 EIGHTH AVENUE, NEW YORK, NEW YORK 10011, TO RECEIVE, FOR IT AND ON
ITS BEHALF, SERVICE OF PROCESS IN THE STATE OF NEW YORK WITH RESPECT THERETO AT
ANY AND ALL TIMES. EACH OF CEMEX ESPANA AND THE COMPANY WILL TAKE ANY AND ALL
ACTION, INCLUDING THE EXECUTION AND FILING OF ALL SUCH DOCUMENTS AND
INSTRUMENTS AND TIMELY PAYMENTS OF FEES AND EXPENSES, AS MAY BE NECESSARY TO
EFFECT AND CONTINUE THE APPOINTMENT OF SUCH AGENT IN FULL FORCE AND EFFECT, OR
IF NECESSARY BY REASON OF ANY FACT OR CONDITION RELATING TO SUCH AGENT, TO
REPLACE SUCH AGENT (BUT ONLY AFTER HAVING GIVEN NOTICE THEREOF TO EACH HOLDER
OF NOTES AND ANY SUCCESSOR AGENT IS REASONABLY ACCEPTABLE TO REQUIRED HOLDERS).
EACH OF CEMEX ESPANA AND THE COMPANY AGREES THAT SERVICE OF PROCESS UPON SUCH
AGENT SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON EACH
OF CEMEX ESPANA AND THE COMPANY IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY
SUCH COURT. EACH OF CEMEX ESPANA AND THE COMPANY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ALL CLAIM OR ERROR BY REASON OF ANY SUCH
SERVICE IN SUCH MANNER AND AGREES THAT SUCH SERVICE SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON EACH OF CEMEX ESPANA AND THE COMPANY
IN ANY SUCH SUIT, ACTION OR PROCEEDING AND SHALL, TO THE FULLEST EXTENT
PERMITTED BY LAW, BE TAKEN AND HELD TO BE VALID AND PERSONAL SERVICE UPON AND
PERSONAL DELIVERY TO EACH OF CEMEX ESPANA AND THE COMPANY. IN ADDITION, EACH OF
CEMEX ESPANA AND THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND/OR ANY OTHER FINANCING DOCUMENT BROUGHT IN SUCH COURTS, AND
HEREBY IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY HOLDER OF A NOTE
TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY MANNER PERMITTED BY
APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER CEMEX ESPANA OR THE COMPANY IN
SUCH OTHER JURISDICTION, AND IN SUCH MANNER, AS MAY BE PERMITTED BY APPLICABLE
LAW. NOTHING IN THIS SECTION 22.7 SHALL BE DEEMED TO LIMIT ANY OTHER SUBMISSION
TO JURISDICTION, WAIVER OR OTHER AGREEMENT BY CEMEX ESPANA OR THE COMPANY
CONTAINED IN ANY OTHER FINANCING DOCUMENT. TO THE EXTENT THAT CEMEX ESPANA OR
THE COMPANY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, EACH OF CEMEX ESPANA AND THE COMPANY HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER FINANCING DOCUMENTS.
22.8 Judgment Currency.
Each of Cemex Espana and the Company agrees that if, for the purposes
of obtaining judgment in any court, it is necessary to convert a sum due
hereunder or under the Notes in any currency into another currency, to the
fullest extent permitted by law, the rate of exchange used shall be that at
which in accordance with normal banking procedures a holder could purchase such
first currency with such other currency on the Business Day preceding that on
which final judgment is given.
* * * * *
The execution hereof by the Purchasers shall constitute a contract
among Cemex Espana, the Company and the Purchasers for the uses and purposes
hereinabove set forth.
Very truly yours,
CEMEX ESPANA, S.A.
By /s/ Hector Campa Martinez
---------------------------
Hector Campa Martinez
Financing Director Spain
CEMEX ESPANA FINANCE LLC
By /s/ Juan M Portal
---------------------------
Juan M. Portal
Treasurer and Assistant
Secretary
The foregoing is hereby agreed
to as of the date thereof.
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AIG ANNUITY INSURANCE COMPANY
AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY
OF NEW YORK
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE COMPANY
MERIT LIFE INSURANCE CO.
By: AIG Global Investment Corp.,
Investment Adviser
By: /s/Lorri J. White
--------------------------------------
Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/John A. Wills
--------------------------------------
Assistant Investment Officer
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/John A. Wills
--------------------------------------
Assistant Investment Officer
NATIONAL BENEFIT LIFE INSURANCE COMPANY
By: /s/John A. Wills
--------------------------------------
Assistant Investment Officer
PRIMERICA LIFE INSURANCE COMPANY
By: /s/John A. Wills
--------------------------------------
Assistant Investment Officer
AMERICAN MAYFLOWER LIFE INSURANCE COMPANY
By: GE Asset Management Incorporated,
Its Investment Advisor
By: /s/Jon M. Lucia
--------------------------------------
Senior Vice President - Fixed Income Private Placement
EMPLOYERS REINSURANCE CORPORATION
By: GE Asset Management Incorporated,
Its Investment Advisor
By: /s/Jon M. Lucia
--------------------------------------
Senior Vice President - Fixed Income Private Placement
FIRST COLONY LIFE INSURANCE COMPANY
By: GE Asset Management Incorporated,
Its Investment Advisor
By: /s/Jon M. Lucia
--------------------------------------
Senior Vice President - Fixed Income Private Placement
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By: GE Asset Management Incorporated,
Its Investment Advisor
By: /s/Jon M. Lucia
--------------------------------------
Senior Vice President - Fixed Income Private Placement
MEDICAL PROTECTIVE COMPANY
By: GE Asset Management Incorporated,
Its Investment Advisor
By: /s/Jon M. Lucia
--------------------------------------
Senior Vice President - Fixed Income Private Placement
JOHN HANCOCK LIFE INSURANCE COMPANY
By: /s/David E. Johnson
--------------------------------------
Managing Director
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By: /s/David E. Johnson
--------------------------------------
Authorized Signatory
AMCO INSURANCE COMPANY
By: /s/Joseph P. Young
--------------------------------------
Associate Vice President
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By: /s/Joseph P. Young
--------------------------------------
Associate Vice President
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/Joseph P. Young
--------------------------------------
Associate Vice President
NATIONWIDE MULTIPLE MATURITY SEPARATE ACCOUNT
By: /s/Joseph P. Young
--------------------------------------
Associate Vice President
NATIONWIDE MUTUAL INSURANCE COMPANY
By: /s/Joseph P. Young
--------------------------------------
Associate Vice President
CALHOUN & CO., AS NOMINEE FOR COMERICA
BANK & TRUST, NATIONAL ASSOCIATION, TRUSTEE
TO THE TRUST CREATED BY TRUST AGREEMENT
DATED OCTOBER 1, 2002
By: /s/Lori Perrault
--------------------------------------
Assistant Vice President
(Scottish - Lincoln Account)
CALHOUN & CO., AS NOMINEE FOR COMERICA
BANK & TRUST, NATIONAL ASSOCIATION, TRUSTEE
TO THE TRUST CREATED BY TRUST AGREEMENT
DATED OCTOBER 1, 2002
By: /s/Lori Perrault
--------------------------------------
Assistant Vice President
(Scottish -1YR Trust Account)
CALHOUN & CO., AS NOMINEE FOR COMERICA
BANK & TRUST, NATIONAL ASSOCIATION, TRUSTEE
TO THE TRUST CREATED BY TRUST AGREEMENT
DATED OCTOBER 1, 2002
By: /s/Lori Perrault
--------------------------------------
Assistant Vice President
(Scottish -5YR Trust Account)
BERKSHIRE LIFE INSURANCE COMPANY OF AMERICA
By: /s/Thomas M. Donahue
--------------------------------------
Managing Director
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By: /s/Thomas M. Donahue
--------------------------------------
Managing Director
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY
HARTFORD LIFE INSURANCE COMPANY
SENTINEL INSURANCE COMPANY
By Hartford Investment Services, Inc.
By: /s/Ronald S. Mendel
--------------------------------------
Ronald A. Mendel
Senior Vice President
RELIASTAR LIFE INSURANCE COMPANY
USG ANNUITY & LIFE COMPANY
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By: ING Investment Management LLC, as Agent
By: /s/Kurt Opperman
--------------------------------------
Vice President
THE OHIO NATIONAL LIFE INSURANCE COMPANY
By: /s/Michael A. Boedeker
--------------------------------------
Senior Vice President, Investments
THRIVENT FINANCIAL FOR LUTHERANS
By: /s/Mark O. Swenson
--------------------------------------
Vice President
NEW YORK LIFE INSURANCE COMPANY
By: /s/Lisa A. Scuderi
--------------------------------------
Investment Vice President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: New York Life Investment Management LLC,
Its Investment Manager
By: /s/Lisa A. Scuderi
--------------------------------------
Director
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE ACCOUNT
By New York Life Investment Management LLC,
Its Investment Manager
By: /s/Lisa A. Scuderi
--------------------------------------
Director
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By: /s/Timothy S. Collins
--------------------------------------
Authorized Representative
BENEFICIAL LIFE INSURANCE COMPANY
By: /s/Robert R. Dalley
--------------------------------------
Senior Vice President and CFO
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By: /s/Jon C. Heiny
--------------------------------------
Counsel
By: /s/James C. Fifield
--------------------------------------
Counsel
PHOENIX LIFE INSURANCE COMPANY
By: /s/Christopher M. Wilkos
--------------------------------------
Senior Vice President
Corporate Portfolio Management
PHL VARIABLE INSURANCE COMPANY
By: /s/Christopher M. Wilkos
--------------------------------------
Senior Vice President
Corporate Portfolio Management
SCHEDULE A
TRANCHE 1
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
THE TRAVELERS INSURANCE COMPANY Series 2003
Tranche 1
$18,900,000
(R-T1-1)
$4,400,000
(R-T1-2)
1) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
The Travelers Insurance Company -
Consolidated Private Placement
Account No. 910-2-587434
JPMorgan Chase Bank
One Chase Manhattan Plaza
New York, New York 10081
ABA No. 021000021
In case of all notices with respect to payments:
The Travelers Insurance Company
242 Trumbull Street, P.O. Box 150449
Hartford, Connecticut 06115-0449
Attention: Cashier, 5th Floor
Facsimile: 860-308-8556
Delivery of Notes after Closing:
Daniel B. Kenney, Esq.
Citigroup Investments Inc.
242 Trumbull Street
Hartford, Connecticut 06115-0449
Notices and Communications:
The Travelers Insurance Company
242 Trumbull Street, P.O. Box 150449
Hartford, Connecticut 06115-0449
Attention: Private Placements, 7th Floor
Facsimile: 860-308-8547
Tax Identification No.: 06-0566090
Signature Block Format:
THE TRAVELERS INSURANCE COMPANY
By: _____________________________
Name: ____________________________
Title: ___________________________
Nominee: TRAL & CO
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
THE TRAVELERS LIFE AND ANNUITY COMPANY Series 2003
Tranche 1
$2,000,000
(R-T1-3)
(2) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
The Travelers Insurance Company -
Consolidated Private Placement
Account No. 910-2-587434
JPMorgan Chase Bank.
One Chase Manhattan Plaza
New York, New York
In case of all notices with respect to payments:
The Travelers Insurance Company
242 Trumbull Street, P.O. Box 150449
Hartford, Connecticut 06115-0449
Attention: Cashier, 5th Floor
Facsimile: 860-308-8556
Delivery of Notes after Closing:
Daniel B. Kenney, Esq.
Citigroup Investments Inc.
242 Trumbull Street
Hartford, Connecticut 06115-0449
Notices and Communications:
The Travelers Insurance Company
242 Trumbull Street, P.O. Box 150449
Hartford, Connecticut 06115-0449
Attention: Private Placements, 7th Floor
Facsimile: 860-308-8547
Tax Identification No.: 06-0904249
Signature Block Format:
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: ____________________________________
Name: ___________________________________
Title: __________________________________
Nominee: TRAL & CO
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
NATIONAL BENEFIT LIFE INSURANCE COMPANY Series 2003
Tranche 1
$1,100,000
(R-T1-4)
(3) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
National Benefit Life Insurance Company
Account No. 910-2-790384
JPMorgan Chase Bank
One Chase Manhattan Plaza
New York, New York 10081
ABA No. 021000021
In case of all notices with respect to payments:
National Benefit Life Insurance Company
242 Trumbull Street, P.O. Box 150449
Hartford, Connecticut 06115-0449
Attention: Cashier, 5th Floor
Facsimile: 860-308-8556
Delivery of Notes after Closing:
Daniel B. Kenney, Esq.
Citigroup Investments Inc.
242 Trumbull Street
Hartford, Connecticut 06115-0449
Notices and Communications:
National Benefit Life Insurance Company
242 Trumbull Street, P.O. Box 150449
Attention: Private Placements, 7th Floor
Facsimile: 860-308-8547
Tax Identification No.: 23-1618791
Signature Block Format:
NATIONAL BENEFIT LIFE INSURANCE COMPANY
By: ____________________________________
Name: ___________________________________
Title: __________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
PRIMERICA LIFE INSURANCE COMPANY Series 2003
Tranche 1
$3,600,000
(R-T1-5)
(4) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
Primerica Life Insurance Company
Account No. 910-2-790079
JPMorgan Chase Bank
One Chase Manhattan Plaza
New York, New York 10081
ABA No. 021000021
In case of all notices with respect to payments:
Primerica Life Insurance Company
242 Trumbull Street, P.O. Box 150449
Hartford, Connecticut 06115-0449
Attention: Cashier, 5th Floor
Facsimile: 860-308-8556
Delivery of Notes after Closing:
Daniel B. Kenney, Esq.
Citigroup Investments Inc.
242 Trumbull Street
Hartford, Connecticut 06115-0449
Notices and Communications:
Primerica Life Insurance Company
242 Trumbull Street, P.O. Box 150449
Attention: Private Placements, 7th Floor
Facsimile: 860-308-8547
Tax Identification No.: 04-1590590
Signature Block Format:
PRIMERICA LIFE INSURANCE COMPANY
By: ______________________________
Name: _____________________________
Title: ____________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
AMERICAN MAYFLOWER LIFE INSURANCE COMPANY OF NEW YORK Series 2003
Tranche 1
$2,000,000
(R-T1-6)
(5) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
Deutsche Bank
14 Wall Street
New York, NY 10005
SWIFT Code: BKTR US 33
ABA #021001033
Account Number 99-911-145
FCC: #098067
In case of all notices with respect to payments:
GE Asset Management
Account: American Mayflower Life Insurance Company
of New York
3003 Summer Street
Stamford, CT 06904
Attn: Investment Accounting (Private Placement Event)
Telephone No.: (203) 356-2734
Fax No.: (203) 356-3023
Jennifer.Ficko@corporate.ge.com (preferred method)
with a copy to:
GE Asset Management
Account: American Mayflower Life Insurance Company
of New York
3003 Summer Street
Stamford, CT 06904
Attn: Trade Operations-Data Integrity
Telephone No.: (203) 921-2126
Fax No.: (203) 326-4288
allison.lima@corporate.ge.com
and with a copy to:
GE Asset Management
Account: American Mayflower Life Insurance Company
of New York
601 Union Street, Suite 2200
Seattle, WA 98101
Attn: Private Placements
Telephone No: (206) 516-4515
Fax No: (206) 516-4578
Delivery of Notes after Closing:
Deutsche Bank
14 Wall Street, 4th Floor
Mail Stop 4042, Window 61
New York, NY 10005
Acct #098067
Attn: Lorraine Squires (212)618-2200
Notices and Communications:
GE Asset Management
Account: American Mayflower Life Insurance Company
of New York
601 Union Street, Suite 2200
Seattle, WA 98101
Attn: Private Placements
Telephone No: (206) 516-4515
Fax No: (206) 516-4578
Tax Identification No.: 13-5660550
Signature Block Format:
AMERICAN MAYFLOWER LIFE INSURANCE COMPANY
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: SALKELD & CO
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
EMPLOYERS REINSURANCE CORPORATION Series 2003
Tranche 1
$10,000,000
(R-T1-7)
(6) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
Deutsche Bank Trust Company
16 Wall Street
New York, NY 10005
SWIFT Code: BKTR US 33
ABA #021-001-033
Account Number 99-911-196
FCC: ERC Total Return (TR) #098481
In case of all notices with respect to payments:
GE Asset Management
Account: ERC Total Return (TR)
3003 Summer Street
Stamford, CT 06904
Attn: Investment Accounting (Private Placement Event)
Telephone No.: (203) 356-2734
Fax No.: (203) 356-3023
Jennifer.Ficko@corporate.ge.com (preferred method)
with a copy to:
GE Asset Management
Account: ERC Total Return (TR)
3003 Summer Street
Stamford, CT 06904
Attn: Trade Operations-Data Integrity
Telephone No.: (203) 921-2126
Fax No.: (203) 326-4288
allison.lima@corporate.ge.com
and with a copy to:
GE Asset Management
Account: ERC Total Return (TR)
601 Union Street, Suite 2200
Seattle, WA 98101
Attn: Private Placements
Telephone No: (206) 516-4515
Fax No: (206) 516-4578
Delivery of Notes after Closing:
Deutsche Bank Trust Company
16 Wall Street
4th Floor, Window 61
New York, NY 10005
Ref: ERC Total Return (TR) #098481
Attn: Lorraine Squires
Notices and Communications:
GE Asset Management Incorporated
Account: ERC Total Return (TR)
Two Union Square, 601 Union Street
Seattle, WA 98101
Attn: Investment Dept., Private Placements
Telephone No: (206) 516-4515
Fax No: (206) 516-4578
Tax Identification No.: 48-0921045
Signature Block Format:
EMPLOYERS REINSURANCE CORPORATION
By:________________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: SALKELD & CO.
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
FIRST COLONY LIFE INSURANCE COMPANY Series 2003
Tranche 1
$9,000,000
(R-T1-8)
(7) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
Deutsche Bank
14 Wall Street
New York, NY 10005
SWIFT Code: BKTR US 33
ABA #021001033
Account Number 99-911-145
FCC: #098069
In case of all notices with respect to payments:
GE Asset Management
Account: First Colony Life Insurance Company
3003 Summer Street
Stamford, CT 06904
Attn: Investment Accounting (Private Placement Event)
Telephone No.: (203) 356-2734
Fax No.: (203) 356-3023
Jennifer.Ficko@corporate.ge.com (preferred method)
with a copy to:
GE Asset Management
Account: First Colony Life Insurance Company
3003 Summer Street
Stamford, CT 06904
Attn: Trade Operations-Data Integrity
Telephone No.: (203) 921-2126
Fax No.: (203) 326-4288
allison.lima@corporate.ge.com
and with a copy to:
GE Asset Management
Account: First Colony Life Insurance Company
601 Union Street, Suite 2200
Seattle, WA 98101
Attn: Private Placements
Telephone No: (206) 516-4515
Fax No: (206) 516-4578
Delivery of Notes after Closing:
Deutsche Bank
14 Wall Street, 4th Floor
Mail Stop 4042, Window 61
New York, NY 10005
Acct #098069
Attn: Lorraine Squires (212)618-2200
Notices and Communications:
GE Asset Management
Account: First Colony Life Insurance Company
601 Union Street, Suite 2200
Seattle, WA 98101
Attn: Private Placements
Telephone No: (206) 516-4515
Fax No: (206) 516-4578
Tax Identification No.: 54-0596414
Signature Block Format:
FIRST COLONY LIFE INSURANCE COMPANY
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: SALKELD & CO.
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY Series 2003
Tranche 1
$6,000,000
(R-T1-9)
(8) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
Deutsche Bank
14 Wall Street
New York, NY 10005
SWIFT Code: BKTR US 33
ABA #021001033
Account Number 99-911-145
FCC: #097833
In case of all notices with respect to payments:
GE Asset Management
Account: General Electric Capital Assurance Company
3003 Summer Street
Stamford, CT 06904
Attn: Investment Accounting (Private Placement Event)
Telephone No.: (203) 356-2734
Fax No.: (203) 356-3023
Jennifer.Ficko@corporate.ge.com (preferred method)
with a copy to:
GE Asset Management
Account: General Electric Capital Assurance Company
3003 Summer Street
Stamford, CT 06904
Attn: Trade Operations-Data Integrity
Telephone No.: (203) 921-2126
Fax No.: (203) 326-4288
allison.lima@corporate.ge.com
and with a copy to:
GE Asset Management
Account: General Electric Capital Assurance Company
601 Union Street, Suite 2200
Seattle, WA 98101
Attn: Private Placements
Telephone No: (206) 516-4515
Fax No: (206) 516-4578
Delivery of Notes after Closing:
Deutsche Bank
14 Wall Street, 4th Floor
Mail Stop 4042, Window 61
New York, NY 10005
Acct #097833
Attn: Lorraine Squires (212)618-2200
Notices and Communications:
GE Asset Management
Account: General Electric Capital Assurance Company
601 Union Street, Suite 2200
Seattle, WA 98101
Attn: Private Placements
Telephone No: (206) 516-4515
Fax No: (206) 516-4578
Tax Identification No.: 91-6027719
Signature Block Format:
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By:________________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: SALKELD & CO.
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
MEDICAL PROTECTIVE COMPANY Series 2003
Tranche 1
$3,000,000
(R-T1-10)
(9) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
Deutsche Bank Trust Company
16 Wall Street
New York, NY 10005
SWIFT Code: BKTR US 33
ABA #021-001-033
Account Number 99-911-196
FCC: Med Pro General Fund (MPG) #094773
In case of all notices with respect to payments:
GE Asset Management
Account: Medical Protective Company
3003 Summer Street
Stamford, CT 06904
Attn: Investment Accounting (Private Placement Event)
Telephone No.: (203) 356-2734
Fax No.: (203) 356-3023
Jennifer.Ficko@corporate.ge.com (preferred method)
with a copy to:
GE Asset Management
Account: Medical Protective Company
3003 Summer Street
Stamford, CT 06904
Attn: Trade Operations-Data Integrity
Telephone No.: (203) 921-2126
Fax No.: (203) 326-4288
allison.lima@corporate.ge.com
and with a copy to:
GE Asset Management
Account: Medical Protective Company
601 Union Street, Suite 2200
Seattle, WA 98101
Attn: Private Placements
Telephone No: (206) 516-4515
Fax No: (206) 516-4578
Delivery of Notes after Closing:
Deutsche Bank Trust Company
16 Wall Street
4th Floor, Window 61
New York, NY 10005
Ref: Med Pro General Fund (MPG) Account # 094773
Attn: Lorraine Squires
Notices and Communications:
GE Asset Management Incorporated
Account: Medical Protective General Fund (MPG)
Two Union Square, 601 Union Street
Seattle, WA 98101
Attn: Investment Dept., Private Placements
Telephone No: (206) 516-4515
Fax No: (206) 516-4578
Tax Identification No.: 35-0506406
Signature Block Format:
MEDICAL PROTECTIVE COMPANY
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: SALKELD & CO.
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
John Hancock Life Insurance Company Series 2003
Tranche 1
$13,750,000
(R-T1-11)
(10) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
Bank One, N.A.
ABA No. 071000013
Account of: John Hancock Champaign Service Center -
Mortgage/Bond
Account Number: 617423603
In case of all notices with respect to payments:
John Hancock Life Insurance Company
201 Knollwood Drive, Suite A
Champaign, IL 61820-7594
Attn: Accounting
Fax: (217) 356-1031
with a copy to:
John Hancock Life Insurance Company
200 Clarendon St.
Boston, MA 02117
Attn: Bond & Corp. Finance Group, T-57
Fax: (617) 572-1165
Delivery of Notes after Closing:
John Hancock Life Insurance Company
200 Clarendon Street, T-30
Boston, MA 02117
Attn: Malcolm Pittman
Notices and Communications:
John Hancock Life Insurance Company
200 Clarendon St.
Boston, MA 02117
Attn: Bond and Corporate Finance Group, T-57
Fax: (617) 572-1605
Tax Identification No.: 04-1414660
Signature Block Format:
JOHN HANCOCK LIFE INSURANCE COMPANY
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY Series 2003
Tranche 1
$6,250,000
(R-T1-12)
(11) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
Bank One, N.A.
ABA No. 071000013
Account of: John Hancock Champaign Service Center -
Mortgage/Bond
Account Number: 617423603
In case of all notices with respect to payments:
John Hancock Life Insurance Company
201 Knollwood Drive, Suite A
Champaign, IL 61820-7594
Attn: Accounting
Fax: (217) 356-1031
with a copy to:
John Hancock Life Insurance Company
200 Clarendon St.
Boston, MA 02117
Attn: Bond & Corp. Finance Group, T-57
Fax: (617) 572-1165
Delivery of Notes after Closing:
John Hancock Life Insurance Company
200 Clarendon Street, T-30
Boston, MA 02117
Attn: Malcolm Pittman
Notices and Communications:
John Hancock Life Insurance Company
200 Clarendon St.
Boston, MA 02117
Attn: Bond and Corporate Finance Group, T-57
Fax: (617) 572-1605
Tax Identification No.: 04-2664016
Signature Block Format:
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
AMCO INSURANCE COMPANY Series 2003
Tranche 1
$1,000,000
(R-T1-13)
(12) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O AMCO Insurance Company
Attn: P & I Department
In case of all notices with respect to payments:
AMCO Insurance Company
c/o The Bank of New York
P O Box 19266
Attn: P & I Department
Newark, NJ 07195
With a copy to:
AMCO Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Delivery of Notes after Closing:
The Bank of New York
One Wall Street
3rd Floor - Window A
New York, NY 10286
F/A/O AMCO Insurance Co. Acct #000611
Notices and Communications:
AMCO Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Tax Identification No.: 42-6054959
Signature Block Format:
AMCO INSURANCE COMPANY
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY Series 2003
Tranche 1
$1,000,000
(R-T1-14)
(13) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Life and Annuity Insurance Company
Attn: P & I Department
In case of all notices with respect to payments:
Nationwide Life and Annuity Insurance Company
c/o The Bank of New York
P O Box 19266
Attn: P & I Department
Newark, NJ 07195
With a copy to:
Nationwide Life and Annuity Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Delivery of Notes after Closing:
The Bank of New York
One Wall Street
3rd Floor - Window A
New York, NY 10286
F/A/O Nationwide Life and Annuity Insurance Co. Acct #267961
Notices and Communications:
Nationwide Life and Annuity Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Tax Identification No.: 31-1000740
Signature Block Format:
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
NATIONWIDE LIFE INSURANCE COMPANY Series 2003
Tranche 1
$10,000,000
(R-T1-15)
(14) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attn: P & I Department
In case of all notices with respect to payments:
Nationwide Life Insurance Company
c/o The Bank of New York
P O Box 19266
Attn: P & I Department
Newark, NJ 07195
With a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Delivery of Notes after Closing:
The Bank of New York
One Wall Street
3rd Floor - Window A
New York, NY 10286
F/A/O Nationwide Life Insurance Co. Acct #267829
Notices and Communications:
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Tax Identification No.: 31-4156830
Signature Block Format:
NATIONWIDE LIFE INSURANCE COMPANY
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
NATIONWIDE MULTIPLE MATURITY SEPARATE ACCOUNT Series 2003
Tranche 1
$1,000,000
(R-T1-16)
(15) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Multiple Maturity Separate Account
Attn: P & I Department
In case of all notices with respect to payments:
Nationwide Multiple Maturity Separate Account
c/o The Bank of New York
P O Box 19266
Attn: P & I Department
Newark, NJ 07195
With a copy to:
Nationwide Multiple Maturity Separate Account
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Delivery of Notes after Closing:
The Bank of New York
One Wall Street
3rd Floor - Window A
New York, NY 10286
F/A/O Nationwide Multiple Maturity Separate Account -
Account #267919
Notices and Communications:
Nationwide Multiple Maturity Separate Account
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Investments
Tax Identification No.: 31-4156830
Signature Block Format:
NATIONWIDE MULTIPLE MATURITY SEPARATE ACCOUNT
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
NATIONWIDE MUTUAL INSURANCE COMPANY Series 2003
Tranche 1
$2,000,000
(R-T1-17)
(16) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Mutual Insurance Company
Attn: P & I Department
In case of all notices with respect to payments:
Nationwide Mutual Insurance Company
c/o The Bank of New York
P O Box 19266
Attn: P & I Department
Newark, NJ 07195
With a copy to:
Nationwide Mutual Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Delivery of Notes after Closing:
The Bank of New York
One Wall Street
3rd Floor - Window A
New York, NY 10286
F/A/O Nationwide Mutual Insurance Co. Acct #264232
Notices and Communications:
Nationwide Mutual Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Investments
Tax Identification No.: 31-4177100
Signature Block Format:
NATIONWIDE MUTUAL INSURANCE COMPANY
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
SCOTTISH ANNUITY & LIFE HOLDINGS LINCOLN, LTD Series 2003
Tranche 1
$1,000,000
(R-T1-18)
(17) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
Comerica Bank / Trust Operations
AC: 2158598532
BNF: Scottish Annuity & Life Holdings, Ltd.
AC: 011000734950
BBI: Trade Settlement (313) 222-3111
Bank Routing Number: 072000096
OBI PFGSE (S) B0066174( )
In case of all notices with respect to payments:
Scottish Annuity & Life - Lincoln
c/o Principal Global Investors, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0960
Attn: Investment Accounting - Securities
Fax (515) 248-2643
Confirmation (515) 248-2766
Delivery of Notes after Closing:
Comerica Bank
Attn: Dan Molnar
Mail Code 3462
411 West Lafayette
Detroit, MI 48226
Notices and Communications:
Scottish Annuity & Life - Lincoln
c/o Principal Global Investors, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0800
Attn: Fixed Income - Securities
Fax (515) 248-2490
Confirmation (515) 248-3495
Tax Identification No.: 23-2038295
Signature Block Format:
CALHOUN & CO., AS NOMINEE FOR COMERICA BANK &
TRUST, NATIONAL ASSOCIATION, TRUSTEE TO THE
TRUST CREATED BY TRUST AGREEMENT DATED
OCTOBER 1, 2002
By: _______________________________________
Name: ______________________________________
Title: _____________________________________
Nominee: CALHOUN & CO.
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
SCOTTISH RE (US)/ NATIONWIDE LIFE INSURANCE Series 2003
CO. 1 YR TRUST Tranche 1
$1,000,000
(R-T1-19)
(18) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
Comerica Bank / Trust Operations
AC: 2158598532
BNF: Scottish Annuity & Life Holdings, Ltd.
AC: 011000735079
BBI: Trade Settlement (313) 222-3111
Bank Routing Number: 072000096
OBI PFGSE (S) B0066174( )
In case of all notices with respect to payments:
Scottish Annuity & Life - 1 YR
c/o Principal Global Investors, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0960
Attn: Investment Accounting - Securities
Fax (515) 248-2643
Confirmation (515) 248-2766
Delivery of Notes after Closing:
Comerica Bank
Attn: Dan Molnar
Mail Code 3462
411 West Lafayette
Detroit, MI 48226
Notices and Communications:
Scottish Annuity & Life - 1 YR
c/o Principal Global Investors, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0800
Attn: Fixed Income - Securities
Fax (515) 248-2490
Confirmation (515) 248-3495
Tax Identification No.: 23-2038295
Signature Block Format:
CALHOUN & CO., AS NOMINEE FOR COMERICA
BANK & TRUST, NATIONAL ASSOCIATION, TRUSTEE
TO THE TRUST CREATED BY TRUST AGREEMENT
DATED OCTOBER 1, 2002
By: _______________________________________
Name: ______________________________________
Title: _____________________________________
Nominee: CALHOUN & CO.
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
SCOTTISH RE (US)/ NATIONWIDE LIFE & ANNUITY Series 2003
INSURANCE CO. 5 YR TRUST Tranche 1
$1,000,000
(R-T1-20)
(19) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
Comerica Bank / Trust Operations
AC: 2158598532
BNF: Scottish Annuity & Life Holdings, Ltd.
AC: 011000782327
BBI: Trade Settlement (313) 222-3111
Bank Routing Number: 072000096
OBI PFGSE (S) B0066174( )
In case of all notices with respect to payments:
Scottish Annuity & Life - 5 YR
c/o Principal Global Investors, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0960
Attn: Investment Accounting - Securities
Fax (515) 248-2643
Confirmation (515) 248-2766
Delivery of Notes after Closing:
Comerica Bank
Attn: Dan Molnar
Mail Code 3462
411 West Lafayette
Detroit, MI 48226
Notices and Communications:
Scottish Annuity & Life - 5 YR
c/o Principal Global Investors, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0800
Attn: Fixed Income - Securities
Fax (515) 248-2490
Confirmation (515) 248-3495
Tax Identification No.: 23-2038295
Signature Block Format:
CALHOUN & CO., AS NOMINEE FOR COMERICA BANK
& TRUST, NATIONAL ASSOCIATION, TRUSTEE TO
THE TRUST CREATED BY TRUST AGREEMENT DATED
OCTOBER 1, 2002
By: ______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: CALHOUN & CO.
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
PHL VARIABLE INSURANCE COMPANY Series 2003
Tranche 1
$2,500,000
(R-T1-21)
(20) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
JP Morgan Chase
New York, New York
ABA# 021 000 021
Acct. No. 900 9000 200
Acct. Name: Income Processing
Reference: G 09390, Phoenix Life
PHLVIC Annuity
In case of all notices with respect to payments:
Phoenix Investment Partners
Private Placement Group
56 Prospect Street
Hartford, CT 06115
Fax number: (860) 403-7248
Delivery of Notes after Closing:
Phoenix Life Insurance Company
Attn: John Mulrain
One American Row
Hartford, CT 06115
Notices and Communications:
Phoenix Investment Partners
Private Placement Group
56 Prospect Street
Hartford, CT 06115
Fax number: (860) 403-7248
with a copy to:
PHL Variable Insurance Company
One American Row
Hartford, CT 06115
Tax Identification No.: 06-1045829
Signature Block Format:
PHL VARIABLE INSURANCE COMPANY
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
PHL VARIABLE INSURANCE COMPANY Series 2003
Tranche 1
$2,500,000
(R-T1-22)
(21) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 4.77% Senior Notes
due June 2010, PPN 15128@AA 1, principal,
interest and/or Make Whole Amount") to:
JP Morgan Chase
New York, New York
ABA# 021 000 021
Acct. No. 900 9000 200
Acct. Name: Income Processing
Reference: G 09163, Phoenix Life
PHLVIC Separate Account MVA
In case of all notices with respect to payments:
Phoenix Investment Partners
Private Placement Group
56 Prospect Street
Hartford, CT 06115
Fax number: (860) 403-7248
Delivery of Notes after Closing:
Phoenix Life Insurance Company
Attn: John Mulrain
One American Row
Hartford, CT 06115
Notices and Communications:
Phoenix Investment Partners
Private Placement Group
56 Prospect Street
Hartford, CT 06115
Fax number: (860) 403-7248
with a copy to:
PHL Variable Insurance Company
One American Row
Hartford, CT 06115
Tax Identification No.: 06-1045829
Signature Block Format:
PHL VARIABLE INSURANCE COMPANY
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: None
TRANCHE 2
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
BERKSHIRE LIFE INSURANCE COMPANY OF AMERICA Series 2003
Tranche 2
$2,000,000
(R-T2-1)
(22) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.36% Senior Notes
due June 2013, PPN 15128@AB 9, principal,
interest and/or Make Whole Amount") to:
JP Morgan Chase
FED ABA#021000021
Chase/NYC/CTR/BNF
A/C 900-9-000200
Ref. A/C # G07064 Berkshire Life Insurance and
[insert Cusip No.]
In case of all notices with respect to payments:
Berkshire Life Insurance Company of America
c/o The Guardian Life Insurance Company of America
7, Hanover Square
New York,
NY 10004-2616
Fax +1 212 919 2906
Attn. Investment Accounting Department 17-B
Delivery of Notes after Closing:
JP Morgan Chase
4 New York Plaza
Ground Floor Receive Window New York 10004
Ref. A/C # G07064 Berkshire Life Insurance
Notices and Communications:
Berkshire Life Insurance Company of America
c/o The Guardian Life Insurance Company of America
7, Hanover Square
New York,
NY 10004-2616
Fax +1 212 919 2656/2658
Attn. Thomas M. Donohue
Investment Department 20-D
Tax Identification No.: 75-1277524
Signature Block Format:
BERKSHIRE LIFE INSURANCE COMPANY OF AMERICA
By: ______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA Series 2003
Tranche 2
$5,000,000 (R-T2-2)
$4,000,000 (R-T2-3)
(23) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.36% Senior Notes
due June 2013, PPN 15128@AB 9, principal,
interest and/or Make Whole Amount") to:
JP Morgan Chase
FED ABA#021000021
Chase/NYC/CTR/BNF
A/C 900-9-000200
Ref. A/C # G05978 Guardian Life
The Guardian Life Insurance Company of America and
[insert Cusip No.]
In case of all notices with respect to payments:
The Guardian Life Insurance Company of America
Attn.: Investment Accounting Dept. 17-B
7, Hanover Square
New York,
NY 10004-2616
Fax +1 212 919 2906
Delivery of Notes after Closing:
JP Morgan Chase
4 New York Plaza
Ground Floor Receive Window
New York 10004
Ref. A/C # G05978 Guardian Life
Notices and Communications:
The Guardian Life Insurance Company of America
7, Hanover Square
New York,
NY 10004-2616
Fax +1 212 919 2656/2658
Attn. Thomas M. Donohue
Investment Department 20-D
Tax Identification No.: 13-5123390
Signature Block Format:
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By: __________________________________________
Name: _________________________________________
Title: ________________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY Series 2003
Tranche 2
$10,000,000
(R-T2-4)
(24) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.36% Senior Notes
due June 2013, PPN 15128@AB 9, principal,
interest and/or Make Whole Amount") to:
JP Morgan Chase
4 New York Plaza
New York New York 10004
Bank ABA No. 021000021
Chase NYC/Cust
A/C # 900-9-000200 for F/C/T G06956-EBD
Attn: Bond Interest/Principal - Cemex Espana
Finance LLC Senior Notes Ser 2003 Tranche 2
In case of all notices with respect to payments:
Hartford Investment Management Company
c/o Portfolio Support
P.O. Box 1744 Hartford, Connecticut 06144-1744
Fax 860-297-8875/8876
Delivery of Notes after Closing:
JP Morgan Chase
North America Insurance
3 Chase MetroTech Center - 5th Floor South
Brooklyn, New York 11245
Attn: Bettye Carrera
Custody Account Number: G06956-EBD must appear
on outside of envelope
Notices and Communications:
Hartford Investment Management Company
c/o Investment Department - Private Placements
P.O. Box 1744 Hartford, Connecticut 06144-1744
Fax 860-297-8884
Tax Identification No.: 06-0838648
Signature Block Format:
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY
HARTFORD LIFE INSURANCE COMPANY
SENTINEL INSURANCE COMPANY
BY HARTFORD INVESTMENT SERVICES, INC.
By: _______________________________________
Name: Ronald A. Mendel
Title: Senior Vice President
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
HARTFORD LIFE INSURANCE COMPANY Series 2003
Tranche 2
$10,000,000
(R-T2-5)
(25) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.36% Senior Notes
due June 2013, PPN 15128@AB 9, principal,
interest and/or Make Whole Amount") to:
JP Morgan Chase
4 New York Plaza
New York New York 10004
Bank ABA No. 021000021
Chase NYC/Cust
A/C # 900-9-000200 for F/C/T G06641-CRC
Attn: Bond Interest/Principal - Cemex Espana
Finance LLC Senior Notes Ser 2003 Tranche 2
In case of all notices with respect to payments:
Hartford Investment Management Company
c/o Portfolio Support
P.O. Box 1744 Hartford, Connecticut 06144-1744
Fax 860-297-8875/8876
Delivery of Notes after Closing:
JP Morgan Chase
North America Insurance
3 Chase MetroTech Center - 5th Floor South
Brooklyn, New York 11245
Attn: Bettye Carrera
Custody Account Number: G06641-CRC must appear
on outside of envelope
Notices and Communications:
Hartford Investment Management Company
c/o Investment Department - Private Placements
P.O. Box 1744 Hartford, Connecticut 06144-1744
Fax 860-297-8884
Tax Identification No.: 06-0974148
Signature Block Format:
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY
HARTFORD LIFE INSURANCE COMPANY
SENTINEL INSURANCE COMPANY
BY HARTFORD INVESTMENT SERVICES, INC.
By: _______________________________________
Name: Ronald A. Mendel
Title: Senior Vice President
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
SENTINEL INSURANCE COMPANY, LTD Series 2003
Tranche 2
$10,000,000
(R-T2-6)
(26) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.36% Senior Notes
due June 2013, PPN 15128@AB 9, principal,
interest and/or Make Whole Amount") to:
JP Morgan Chase
4 New York Plaza
New York New York 10004
Bank ABA No. 021000021
Chase NYC/Cust
A/C # 900-9-000200 for F/C/T G06249-SEN
Attn: Bond Interest/Principal - Cemex Espana
Finance LLC Senior Notes Ser 2003 Tranche 2
In case of all notices with respect to payments:
Hartford Investment Management Company
c/o Portfolio Support
P.O. Box 1744 Hartford, Connecticut 06144-1744
Fax 860-297-8875/8876
Delivery of Notes after Closing:
JP Morgan Chase
North America Insurance
3 Chase MetroTech Center - 5th Floor South
Brooklyn, New York 11245
Attn: Bettye Carrera
Custody Account Number: G06249-SEN must appear on
outside of envelope
Notices and Communications:
Hartford Investment Management Company
c/o Investment Department - Private Placements
P.O. Box 1744
Hartford, Connecticut 06144-1744
Fax 860-297-8884
Tax Identification No.: 06-1552103
Signature Block Format:
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY
HARTFORD LIFE INSURANCE COMPANY
SENTINEL INSURANCE COMPANY
BY HARTFORD INVESTMENT SERVICES, INC.
By: _______________________________________
Name: Ronald A. Mendel
Title: Senior Vice President
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
RELIASTAR LIFE INSURANCE COMPANY Series 2003
Tranche 2
$2,000,000
(R-T2-7)
(27) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.36% Senior Notes
due June 2013, PPN 15128@AB 9, principal,
interest and/or Make Whole Amount") to:
BK OF NYC
IOC 566-INST'L CUSTODY
ABA #021000018
Ref.: ReliaStar Life Insurance Company,
Acct. No. 187035 and [insert Cusip No.]
In case of all notices with respect to payments:
ING Investment Management LLC
5780 Powers Ferry Road, NW, Suite 300
Atlanta, GA 30327-4349
Attn.: Securities Accounting
Fax: (770) 690-4886
Delivery of Notes after Closing:
The Bank of New York
One Wall Street
Window A - 3rd Floor
New York, NY 10286
Ref. RLI - Acct. No. 187035
with copy to:
ING Investment Management LLC
5780 Powers Ferry Road, NW, Suite 300
Atlanta, GA 30327-4349
Attn.: Private Placements
Fax: (770) 690-5057
Notices and Communications:
ING Investment Management LLC
5780 Powers Ferry Road, NW, Suite 300
Atlanta, GA 30327-4349
Attn.: Private Placements
Fax: (770) 690-5057
Tax Identification No.: 41-0451140
Signature Block Format:
RELIASTAR LIFE INSURANCE COMPANY
USG ANNUITY & LIFE COMPANY
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By: ING Investment Management LLC, as Agent
By: _______________________________________
Name: ______________________________________
Title: _____________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK Series 2003
Tranche 2
$8,000,000
(R-T2-8)
(28) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.36% Senior Notes
due June 2013, PPN 15128@AB 9, principal,
interest and/or Make Whole Amount") to:
BK OF NYC
IOC 566-INST'L CUSTODY
ABA #021000018
Ref.: ReliaStar Life Insurance Company of New York,
Acct. No. 187038 and [insert Cusip No.]
In case of all notices with respect to payments:
ING Investment Management LLC
5780 Powers Ferry Road, NW, Suite 300
Atlanta, GA 30327-4349
Attn.: Securities Accounting
Fax: (770) 690-4886
Delivery of Notes after Closing:
The Bank of New York
One Wall Street
Window A - 3rd Floor
New York, NY 10286
Ref. RNY - Acct. No. 187038
with copy to:
ING Investment Management LLC
5780 Powers Ferry Road, NW, Suite 300
Atlanta, GA 30327-4349
Attn.: Private Placements
Fax: (770) 690-5057
Notices and Communications:
ING Investment Management LLC
5780 Powers Ferry Road, NW, Suite 300
Atlanta, GA 30327-4349
Attn.: Private Placements
Fax: (770) 690-5057
Tax Identification No.: 53-0242530
Signature Block Format:
RELIASTAR LIFE INSURANCE COMPANY
USG ANNUITY & LIFE COMPANY
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By: ING Investment Management LLC, as Agent
By: ________________________________________
Name: _______________________________________
Title: ______________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
USG ANNUITY & LIFE COMPANY Series 2003
Tranche 2
$ 15,000,000
(R-T2-9)
(29) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.36% Senior Notes
due June 2013, PPN 15128@AB 9, principal,
interest and/or Make Whole Amount") to:
The Bank of New York
ABA #021000018
BNF #IOC566 - Income Collections
Attn: William Cashman
Ref.: USG Annuity & Life Company,
Acct. No. 368520 and [insert Cusip No.]
In case of all notices with respect to payments:
ING Investment Management LLC
5780 Powers Ferry Road, NW, Suite 300
Atlanta, GA 30327-4349
Attn.: Securities Accounting
Fax: (770) 690-4886
Delivery of Notes after Closing:
The Bank of New York
One Wall Street
Window A - 3rd Floor
New York, NY 10286
Ref. USG - Acct. No. 368520
with copy to:
ING Investment Management LLC
5780 Powers Ferry Road, NW, Suite 300
Atlanta, GA 30327-4349
Attn.: Private Placements
Fax: (770) 690-5057
Notices and Communications:
ING Investment Management LLC
5780 Powers Ferry Road, NW, Suite 300
Atlanta, GA 30327-4349
Attn.: Private Placements
Fax: (770) 690-5057
Tax Identification No.: 73-0663836
Signature Block Format:
RELIASTAR LIFE INSURANCE COMPANY
USG ANNUITY & LIFE COMPANY
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By: ING Investment Management LLC, as Agent
By: ________________________________________
Name: _______________________________________
Title: AUTHORISED SIGNATORY
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
THE OHIO NATIONAL LIFE INSURANCE COMPANY Series 2003
Tranche 2
$10,000,000
(R-T2-10)
(30) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.36% Senior Notes
due June 2013, PPN 15128@AB 9, principal,
interest and/or Make Whole Amount") to:
U.S. Bank N.A. (ABA #042-000013)
5th & Walnut Streets
Cincinnati, OH 45202
For credit to The Ohio National Life Insurance Company's
Account No. 910-275-7
In case of all notices with respect to payments:
The Ohio National Life Insurance Company
One Financial Way
Cincinnati, OH 45242
Attention: Investment Department
Fax number: 513-794-4506
Delivery of Notes after Closing:
Jed R. Martin
Investment Vice President, Private Placements
The Ohio National Life Insurance Company
One Financial Way
Cincinnati, OH 45242
telephone number: 513-794-6381
fax number: 513-794-4506
e-mail: jed_martin@ohionational.com
Notices and Communications:
The Ohio National Life Insurance Company
One Financial Way
Cincinnati, OH 45242
Attention: Investment Department
Fax number: 513-794-4506
Tax Identification No.: 31-0397080
Signature Block Format:
THE OHIO NATIONAL LIFE INSURANCE COMPANY
By: ____________________________________
Name: ___________________________________
Title: __________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
THRIVENT FINANCIAL FOR LUTHERANS Series 2003
Tranche 2
$20,000,000
(R-T2-11)
(31) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.36% Senior Notes
due June 2013, PPN 15128@AB 9, principal,
interest and/or Make Whole Amount") to:
ABA # 011000028
State Street Bank & Trust Co.
DDA # A/C - 6813-049-1
Fund Number: NCE1
Fund Name: Thrivent Financial for Lutherans
In case of all notices with respect to payments:
Investment Division
Thrivent Financial for Lutherans
625 Fourth Avenue North
Minneapolis MN 55415
Fax: 612-340-5776
With a copy to:
Thrivent Accounts
State Street Kansas City
801 Pennsylvania
Kansas City, MO 64105
Attention: Bart Woodson
Fax: 816-691-3610
Delivery of Notes after Closing:
DTC/New York Window
55 Water Street
Plaza Level - 3rd Floor
New York, NY 10041
Account: State Street
Fund Name: Thrivent Financial for Lutherans
Fund Number: NCE1
Nominee Name: Swanbird & Co.
Nominee Tax ID Number: 04-3475606
With a copy to the Thrivent Financial in-house attorney
Notices and Communications:
Thrivent Financial for Lutherans
Attn: Investment Division
625 Fourth Avenue South
Minneapolis, MN 55415
Fax: (612) 340-5776
Tax Identification No.: 39-0123480
Signature Block Format:
THRIVENT FINANCIAL FOR LUTHERANS
By: __________________________________
Name: _________________________________
Title: ________________________________
Nominee: SWANBIRD & CO.
TRANCHE 3
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
AIG ANNUITY INSURANCE COMPANY Series 2003
Tranche 3
$15,000,000
(R-T3-1)
(32) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
ABA # 011000028
State Street Bank and Trust Company
Boston, MA 02101
Re: AIG Annuity Insurance Company
A/C: 7215-132-7
OBI = PPN # and description of payment
Fund Number WE1B
In case of all notices with respect to payments:
AIG Annuity Insurance Company and WE1B
c/o State Street Bank Corporation
Insurance Services
801 Pennsylvania
Kansas City, MO 64105
Fax: (816) 691-3619
Duplicate payment notices to:
AIG Annuity Insurance Company and WE1B
c/o AIG Global Investment Corporation
Attn: Private Placements Department, A36-04
P.O. Box 3247 Houston, Texas 77253-3247
Overnight Mail Address:
2929 Allen Parkway, A36-04
Houston, Texas 77019-2155
Fax: (713) 831-1072
with copy to:
AIG Global Investment Corporation
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, TX 77019-2155
Fax: (713) 831-2328
Delivery of Notes after Closing:
DTC / New York Window,
55 Water Street
New York, N.Y. 10041
Attention: Robert Mendez
Account: State Street
Fund Name: AIG ANNUITY INSURANCE COMPANY
Fund Number: WE 1B
Depository Trust Company (DTC) Instructions:
DTC Participant # 0997
Agent Bank ID # 20997
Institution ID # 39456
Fund Name: AIG ANNUITY INSURANCE COMPANY
Fund Number: WE 1B
Notices and Communications:
AIG Annuity Insurance Company and WE1B
c/o AIG Global Investment Corporation
Attn: Private Placements Department, A36-04
P.O. Box 3247
Houston, Texas 77253-3247
Overnight Mail Address:
2929 Allen Parkway, A36-04
Houston, Texas 77019-2155
Fax: (713) 831-1072
with copy to:
AIG Global Investment Corporation
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, TX 77019-2155
Fax: (713) 831-2328
Tax Identification No.: 75-0770838
Signature Block Format:
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AIG ANNUITY INSURANCE COMPANY
AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY
OF NEW YORK
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE
COMPANY
MERIT LIFE INSURANCE CO.
BY: AIG GLOBAL INVESTMENT CORP.,
INVESTMENT ADVISER
By: ______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE COMPANY Series 2003
Tranche 3
$10,000,000
(R-T3-2)
(33) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
ABA#0110000280
State Street Bank and Trust Company
Boston, MA 02101
Re: American General Life and Accident
Insurance Company
AC-0125-934-0
OBI=PPN # and description of payment
Fund Number PA 10
In case of all notices with respect to payments:
American General Life and Accident Insurance Company
and PA 10
c/o State Street Bank Corporation
Insurance Services
801 Pennsylvania
Kansas City, MO 64105
Fax: (816) 691-3619
Duplicate payment notices to:
American General Life and Accident Insurance
Company and PA 10
c/o AIG Global Investment Corporation
Attn: Private Placement Department, A36-04
P.O. Box 3247
Houston, Texas 77253-3247
Overnight Mail Address:
2929 Allen Parkway, A36-04
Houston, TX 77019-2155
Fax: (713) 831-1072
with copy to:
AIG Global Investment Corporation
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, TX 77019-2155
Fax: (713) 831-2328
Delivery of Notes after Closing:
DTC / New York Window,
55 Water Street
New York, N.Y. 10041
Attention: Robert Mendez
Account: State Street
Fund Name: AGLA
Fund Number: PA 10
Depository Trust Company (DTC) Instructions:
DTC Participant # 0997
Agent Bank ID # 20997
Institution ID # 39456
Fund Name: AGLA
Fund Number: PA 10
Notices and Communications:
American General Life and Accident Insurance
Company and PA 10
c/o AIG Global Investment Corporation
Attn: Private Placement Department, A36-04
P.O. Box 3247 Houston, Texas 77253-3247
Overnight Mail Address:
2929 Allen Parkway, A36-04
Houston, TX 77019-2155
Fax: (713) 831-1072
with copy to:
AIG Global Investment Corporation
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, TX 77019-2155
Fax: (713) 831-2328
Tax Identification No.: 62-0306330
Signature Block Format:
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AIG ANNUITY INSURANCE COMPANY
AMERICAN INTERNATIONAL LIFE ASSURANCE
COMPANY OF NEW YORK
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE
COMPANY
MERIT LIFE INSURANCE CO.
BY: AIG GLOBAL INVESTMENT CORP.,
INVESTMENT ADVISER
By: _______________________________________
Name: ______________________________________
Title: _____________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY Series 2003
OF NEW YORK Tranche 3
$12,000,000
(R-T3-3)
(34) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
ABA#011001234 / BOS SAFE DEP
Federal Reserve Bank of Boston
Boston, MA
DDA # 169064
Cost Center 1178
Ref A/C: AGIFLNY0012 - AILIFE
OBI=PPN # and description of payment
P $ ______________ I $_________________
In case of all notices with respect to payments:
AIG Global Investment Group
ATTN: Jennifer Lee / Kathleen Cosgrove
160 Water Street, 15th Floor
New York, NY 10038
Tel: 212-820-4899 / 4913
Fax: 212-820-4925
Duplicate payment notices to:
American International Life Assurance Company
of New York
c/o AIG Global Investment Corporation
Attn: Private Placement Department, A36-04
P.O. Box 3247 Houston, Texas 77253-3247
Overnight Mail Address:
2929 Allen Parkway, A36-04
Houston, Texas 77019-2155
Fax: (713) 831-1072
with copy to:
AIG Global Investment Corporation
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, TX 77019-2155
Fax (713) 831-2328
Delivery of Notes after Closing:
Mellon Bank
Attn: Mr. Michael Visone
Mellon Bank Securities Trust
120 Broadway - 13th Floor
New York, NY 10271
Ref A/C: AGIFLNY0012 - AI LIFE
DTC Participation # 0954
Agent Bank ID # 26017
Institution ID # 30012
Ref: AI Life
Account # AGIFLNY0012
Notices and Communications:
American International Life Assurance Company
of New York
c/o AIG Global Investment Corporation
Attn: Private Placement Department, A36-04
P.O. Box 3247
Houston, Texas 77253-3247
Overnight Mail Address:
2929 Allen Parkway, A36-04
Houston, Texas 77019-2155
Fax: (713) 831-1072
with copy to:
AIG Global Investment Corporation
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, TX 77019-2155
Fax (713) 831-2328
Tax Identification No.: 13-6101875
Signature Block Format:
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AIG ANNUITY INSURANCE COMPANY
AMERICAN INTERNATIONAL LIFE ASSURANCE
COMPANY OF NEW YORK
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE
COMPANY
MERIT LIFE INSURANCE CO.
BY: AIG GLOBAL INVESTMENT CORP.,
INVESTMENT ADVISER
By: ______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
MERIT LIFE INSURANCE CO. Series 2003
Tranche 3
$3,000,000
(R-T3-4)
(35) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
ABA#011000028
State Street Bank and Trust Company
Boston, MA 02101
Re: Merit Life Insurance Co.
AC-4653-082-0
OBI=PPN # and description of payment
Fund Number PA 20
In case of all notices with respect to payments:
Merit Life Insurance Co. and PA 20
c/o State Street Bank Corporation
Insurance Services
801 Pennsylvania
Kansas City, MO 64105
Fax: (816) 691-3619
Duplicate payment notices to:
Merit Life Insurance Co. and PA 20
Attn: Private Placement Department, A36-04
c/o AIG Global Investment Corporation
P.O. Box 3247 Houston, Texas 77253-3247
Overnight Mail Address:
2929 Allen Parkway, A36-04
Houston, TX 77019-2155
Fax: (713) 831-1072
with copy to:
American General Enterprise Services, Inc.
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, TX 77019-2155
Fax: (713) 831-2328
Delivery of Notes after Closing:
DTC / New York Window,
55 Water Street
New York, N.Y. 10041
Attention: Robert Mendez
Account: State Street
Fund Name: MERIT LIFE INSURANCE CO.
Fund Number: PA 20
Depository Trust Company (DTC) Instructions:
DTC Participant # 0997
Agent Bank ID # 20997
Institution ID # 39456
Fund Name: MERIT LIFE INSURANCE CO.
Fund Number: PA 20
Notices and Communications:
Merit Life Insurance Co. and PA 20
Attn: Private Placement Department, A36-04
c/o AIG Global Investment Corporation
P.O. Box 3247 Houston, Texas 77253-3247
Overnight Mail Address:
2929 Allen Parkway, A36-04
Houston, TX 77019-2155
Fax: (713) 831-1072
with copy to:
American General Enterprise Services, Inc.
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, TX 77019-2155
Fax: (713) 831-2328
Tax Identification No.: 35-1005090
Signature Block Format:
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AIG ANNUITY INSURANCE COMPANY
AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY
OF NEW YORK
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE
COMPANY
MERIT LIFE INSURANCE CO.
BY: AIG GLOBAL INVESTMENT CORP.,
INVESTMENT ADVISER
By: _______________________________________
Name: ______________________________________
Title: _____________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY Series 2003
Tranche 3
$35,000,000
(R-T3-5)
(36) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
ABA # 011000028
State Street Bank and Trust Company
Boston, MA 02101
Re: The Variable Annuity Life Insurance Company
A/C: 0125-821-9
OBI = PPN # and description of payment
Fund Number PA 54
In case of all notices with respect to payments:
The Variable Annuity Life Insurance Company and PA 54
c/o State Street Bank Corporation
Insurance Services
801 Pennsylvania
Kansas City, MO 64105
Fax: (816) 691-3619
Duplicate payment notices to:
The Variable Annuity Life Insurance Company and PA 54
c/o AIG Global Investment Corporation
Attn: Private Placement Department, A36-04
P.O. Box 3247 Houston, Texas 77253-3247
Overnight Mail Address:
2929 Allen Parkway, A36-04
Houston, Texas 77019-2155
Fax: (713) 831-1072
with copy to:
AIG Global Investments Corporation
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, TX 77019-2155
Fax: (713) 831-2328
Delivery of Notes after Closing:
DTC / New York Window,
55 Water Street
New York, N.Y. 10041
Attention: Robert Mendez
Account: State Street
Fund Name: The Variable Annuity Life Insurance Company
Fund Number: PA 54
Depository Trust Company (DTC) Instructions:
DTC Participant # 0997
Agent Bank ID # 20997
Institution ID # 39456
Fund Name: The Variable Annuity Life Insurance Company
Fund Number: PA 54
Notices and Communications:
The Variable Annuity Life Insurance Company and PA 54
c/o AIG Global Investment Corporation
Attn: Private Placement Department, A36-04
P.O. Box 3247 Houston, Texas 77253-3247
Overnight Mail Address:
2929 Allen Parkway, A36-04
Houston, Texas 77019-2155
Fax: (713) 831-1072
with copy to:
AIG Global Investments Corporation
Legal Department - Investment Management
2929 Allen Parkway, Suite A36-01
Houston, TX 77019-2155
Fax: (713) 831-2328
Tax Identification No.: 74-1625348
Signature Block Format:
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AIG ANNUITY INSURANCE COMPANY
AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY
OF NEW YORK
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE
COMPANY
MERIT LIFE INSURANCE CO.
BY: AIG GLOBAL INVESTMENT CORP.,
INVESTMENT ADVISER
By: _______________________________________
Name: ______________________________________
Title: _____________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
JOHN HANCOCK LIFE INSURANCE COMPANY Series 2003
Tranche 3
$17,500,000
(R-T3-6)
(37) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
Bank One, N.A.
ABA No. 071000013
Account of: John Hancock Champaign Service Center -
Mortgage/Bond
Account Number: 617423603
In case of all notices with respect to payments:
John Hancock Life Insurance Company
201 Knollwood Drive, Suite A
Champaign, IL 61820-7594
Attn: Accounting
Fax: (217) 356-1031
with a copy to:
John Hancock Life Insurance Company
200 Clarendon St.
Boston, MA 02117
Attn: Bond & Corp. Finance Group, T-57
Fax: (617) 572-1165
Delivery of Notes after Closing:
John Hancock Life Insurance Company
200 Clarendon Street, T-30
Boston, MA 02117
Attn: Malcolm Pittman
Notices and Communications:
John Hancock Life Insurance Company
200 Clarendon St.
Boston, MA 02117
Attn: Bond and Corporate Finance Group, T-57
Fax: (617) 572-1605
Tax Identification No.: 04-1414660
Signature Block Format:
JOHN HANCOCK LIFE INSURANCE COMPANY
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY Series 2003
Tranche 3
$2,500,000
(R-T3-7)
(38) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
Bank One, N.A.
ABA No. 071000013
Account of: John Hancock Champaign Service Center -
Mortgage/Bond
Account Number: 617423603
In case of all notices with respect to payments:
John Hancock Life Insurance Company
201 Knollwood Drive, Suite A
Champaign, IL 61820-7594
Attn: Accounting
Fax: (217) 356-1031
with a copy to:
John Hancock Life Insurance Company
200 Clarendon St.
Boston, MA 02117
Attn: Bond & Corp. Finance Group, T-57
Fax: (617) 572-1165
Delivery of Notes after Closing:
John Hancock Life Insurance Company
200 Clarendon Street, T-30
Boston, MA 02117
Attn: Malcolm Pittman
Notices and Communications:
John Hancock Life Insurance Company
200 Clarendon St.
Boston, MA 02117
Attn: Bond and Corporate Finance Group, T-57
Fax: (617) 572-1605
Tax Identification No.: 04-2664016
Signature Block Format:
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
NEW YORK LIFE INSURANCE COMPANY Series 2003
Tranche 3
$16,000,000
(R-T3-8)
(39) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
Chase Manhattan Bank
New York, New York 10019
ABA No. 021-000-021
Credit: New York Life Insurance Company
General Account No. 008-9-00687
In case of all notices with respect to payments:
New York Life Insurance Company
c/o New York Life Investment Management LLC
51 Madison Avenue
New York, New York 10010-1603
Attention: Financial Management and Operations Group
Securities Operations
2nd Floor
Fax #: (212) 447-4160
Delivery of Notes after Closing:
New York Life Insurance Company
c/o New York Life Investment Management LLC
51 Madison Avenue
New York, New York 10010-1603
Attention Parkin Lee - Deputy General Counsel
Fax #: (212) 447-4160
Notices and Communications:
New York Life Insurance Company
c/o New York Life Investment Management LLC
51 Madison Avenue
New York, New York 10010
Attention: Securities Investment Group
Private Finance
2nd Floor
Fax #: (212) 447-4122
with a copy of any notices regarding defaults or
Events of Default under the operative documents to:
Attention: Office of General Counsel
Investment Section, Room 1104
Fax #: (212) 576-8340
Tax Identification No.: 13-5582869
Signature Block Format:
NEW YORK LIFE INSURANCE COMPANY
By: ______________________________________
Name: _____________________________________
Title: ____________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION Series 2003
Tranche 3
$8,500,000
(R-T3-9)
(40) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
Chase Manhattan Bank
New York, New York 10019
ABA No. 021-000-021
Credit: New York Life Insurance and Annuity Corporation
General Account No. 323-8-47382
In case of all notices with respect to payments:
New York Life Insurance and Annuity Corporation
c/o New York Life Investment Management LLC
51 Madison Avenue
New York, New York 10010-1603
Attention: Financial Management and Operations Group
Securities Operations
2nd Floor
Fax #: (212) 447-4160
Delivery of Notes after Closing:
New York Life Insurance Company
c/o New York Life Investment Management LLC
51 Madison Avenue
New York, New York 10010-1603
Attention Parkin Lee - Deputy General Counsel
Fax #: (212) 447-4160
Notices and Communications:
New York Life Insurance and Annuity Corporation
c/o New York Life Investment Management LLC
51 Madison Avenue
New York, New York 10010
Attention: Securities Investment Group
Private Finance
2nd Floor
Fax #: (212) 447-4122
with a copy of any notices regarding defaults or
Events of Default under the operative documents to:
Attention: Office of General Counsel
Investment Section, Room 1104
Fax #: (212) 576-8340
Tax Identification No.: 13-3044743
Signature Block Format:
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: New York Life Investment Management LLC,
Its Investment Manager
Name: _______________________________________
Title: ______________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
NEW YORK LIFE INSURANCE AND ANNUITY Series 2003
CORPORATION INSTITUTIONALLY OWNED LIFE Tranche 3
INSURANCE SEPARATE ACCOUNT $500,000
(R-T3-10)
(41) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
Chase Manhattan Bank
New York, New York 10019
ABA No. 021-000-021
Credit: NYLIAC SEPARATE BOLI 3 BROAD FIXED
General Account No. 323-8-39002
In case of all notices with respect to payments:
New York Life Insurance and Annuity Corporation
Institutionally Owned Life Insurance Separate Account
c/o New York Life Investment Management LLC
51 Madison Avenue
New York, New York 10010-1603
Attention: Financial Management and Operations Group
Securities Operations
2nd Floor
Fax #: (212) 447-4160
Delivery of Notes after Closing:
New York Life Insurance Company
c/o New York Life Investment Management LLC
51 Madison Avenue
New York, New York 10010-1603
Attention Parkin Lee - Deputy General Counsel
Fax #: (212) 447-4160
Notices and Communications:
New York Life Insurance and Annuity Corporation
Institutionally Owned Life Insurance Separate Account
c/o New York Life Investment Management LLC
51 Madison Avenue
New York, New York 10010
Attention: Securities Investment Group
Private Finance
2nd Floor
Fax #: (212) 447-4122
with a copy of any notices regarding defaults or
Events of Default under the operative documents to:
Attention: Office of General Counsel
Investment Section, Room 1104
Fax #: (212) 576-8340
Tax Identification No.: 13-3044743
Signature Block Format:
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE
ACCOUNT
By New York Life Investment Management LLC,
Its Investment Manager
Name: _______________________________________
Title: ______________________________________
Nominee: None
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY Series 2003
Tranche 3
$38,000,000
(R-T3-11)
(42) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
State Street Corporation
14 Wall Street, 4th Floor
New York, NY 10005
ABA # 021001033
Account Name: The Northwestern Mutual Life Insurance
Company
Account #: 00-000-027
In case of all notices with respect to payments:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attention: Treasury & Investment Operations Department
Facsimile: (414) 625-6998
Delivery of Notes after Closing:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attention: David Silber
Notices and Communications:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attention: Securities Department
Facsimile: (414) 665-7124
Tax Identification No.: 39-0509570
Signature Block Format:
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By: __________________________________________
Name: _________________________________________
Title: ________________________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
BENEFICIAL LIFE INSURANCE COMPANY Series 2003
Tranche 3
$3,000,000
(R-T3-12)
(43) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
JP Morgan Chase
ABA # 021000021
A/C # 544755102
FFC: Zions First National Bank G70990
In case of all notices with respect to payments:
Beneficial Life Insurance Co.
36 South State, 25th floor
Salt Lake City, UT 84136
Attn: Sterling Russell
Fax: (801)531-3339
Delivery of Notes after Closing:
Annette Rohovit
Deseret Trust Co.
10 East South Temple
Salt Lake City, UT 84133
Phone: 801-363-2991, x3016
Notices and Communications:
Sterling Russell
Beneficial Life Insurance Company
36 South State Street, Salt Lake City, Utah 84136
Phone (801-933-1239)
Facsimile (801-531-3339)
Sterling.Russell@benlife.com
Tax Identification No.: 87-0115120
Signature Block Format:
BENEFICIAL LIFE INSURANCE COMPANY
By: ___________________________________
Name: __________________________________
Title: _________________________________
Nominee: TFINN
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
PRINCIPAL LIFE INSURANCE COMPANY Series 2003
Tranche 3
$27,500,000
(R-T3-13)
$5,000,000
(R-T3-14)
$2,500,000
(R-T3-15)
(44) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
ABA No.: 073000228
Wells Fargo Bank Iowa, N.A.
7th and Walnut Streets
Des Moines, Iowa 50309
For credit to Principal Life Insurance Company
Account No.: 0000014752
OBI PFGSE (S) B0066175( )
In case of all notices with respect to payments:
Principal Global Investors, LLC
801 Grand Ave
Des Moines, IA 50392-0960
ATTN: Investment Accounting - Securities
Fax: (515) 248-2643
Confirmation: (515) 248-2766
Delivery of Notes after Closing:
Principal Global Investors, LLC
801 Grand Avenue
Des Moines, Iowa 50392-0301
Attn.: Jon C. Heiny, Esq.
Notices and Communications:
Principal Global Investors, LLC
801 Grand Ave
Des Moines, IA 50392-0800
ATTN.: Fixed Income - Securities
Fax: (515) 248-2490
Confirmation: (515) 248-3495
Tax Identification No.: 42-0127290
Signature Block Format:
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By: ___________________________
Its: ___________________________
By: ___________________________
Its: ___________________________
Nominee: NONE
PRINCIPAL AMOUNT
AND SERIES OF NOTES
NAME OF PURCHASER TO BE PURCHASED
- ----------------- -------------------
PHOENIX LIFE INSURANCE COMPANY Series 2003
Tranche 3
$5,000,000
(R-T3-16)
(45) All payments on account of the Notes shall be
made by crediting in the form of bank wire
transfer of Federal or other immediately
available funds (identifying each payment as
"Cemex Espana Finance LLC, 5.51% Senior Notes
due June 2015, PPN 15128@AC 7, principal,
interest and/or Make Whole Amount") to:
JP Morgan Chase
New York, New York
ABA# 021 000 021
Acct. No. 900 9000 200
Acct. Name: Income Processing
Reference: G05123, Phoenix Life
PHL Closed Block
In case of all notices with respect to payments:
Phoenix Investment Partners
Private Placement Group
56 Prospect Street
Hartford, CT 06115
Fax number: (860) 403-7248
Delivery of Notes after Closing:
Phoenix Life Insurance Company
Attn: John Mulrain
One American Row
Hartford, CT 06115
Notices and Communications:
Phoenix Investment Partners
Private Placement Group
56 Prospect Street
Hartford, CT 06115
Fax number: (860) 403-7248
with a copy to:
Phoenix Life Insurance Company
One American Row
Hartford, CT 06115
Tax Identification No.: 06-0493340
Signature Block Format:
PHOENIX LIFE INSURANCE COMPANY
By: ______________________________
Name: ____________________________
Title: ___________________________
Nominee: None
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Additional Payment" is defined in Section 14.3(b); when used herein
with respect to any Guarantor, such term shall have the meaning assigned
thereto in the Note Guarantee.
"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 for such period, as determined in accordance with Spanish
GAAP for such Relevant Period less (c) with respect to any business disposed of
during such period, the sum of (i) the operating income and (ii) depreciation
and amortization expense for such business for such period, as determined in
accordance with Spanish GAAP for such Relevant Period; provided that Cemex
Espana need only make the adjustments contemplated by clause (b) and/or (c)
above if the Adjusted EBITDA that would result therefrom would exceed EBITDA by
(euro)10,000,000 or more.
"Affiliate" means, at any time, and with respect to any Person, (a)
any other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person and (b) any Person beneficially owning or holding, directly
or indirectly, 10% or more of any class of voting or equity interests of Cemex
Espana or any Subsidiary or any corporation of which Cemex Espana and its
Subsidiaries beneficially own or hold, in the aggregate, directly or
indirectly, 10% or more of any class of voting or equity interests. As used in
this definition, "Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise. Unless the context otherwise clearly requires, any reference to an
"Affiliate" is a reference to an Affiliate of Cemex Espana.
"Agreement" is defined in the introduction hereto.
"Anti-Terrorism Order" means Executive Order 13,224 of September 23,
2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49,079 (2001), as
amended).
"Asia Fund" means Cemex Asia Holdings Ltd. or any other vehicles used
by Cemex Espana or any Subsidiary 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
Cemex Espana and its Subsidiaries or Cemex and its Subsidiaries and with Cemex
Espana maintaining control of its management.
"Business Day" means (a) for the purposes of Section 8.8 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New York
City are required or authorized to be closed and (b) for the purposes of any
other provision of this Agreement, any day other than a Saturday, a Sunday or a
day on which commercial banks in Madrid, Spain or New York City are required or
authorized to be closed.
"Capital Lease" means any lease that is capitalized on a balance sheet
prepared in accordance with Spanish GAAP.
"Capital Stock" means, with respect to any Person, capital stock or
share capital or other ownership interests in such Person substantially similar
to capital stock or share capital, whether or not called "capital stock" or
"share capital" under the laws of (or in business terminology commonly used in)
the jurisdiction where such Person is organized or conducts its primary
business.
"Cemex" means Cemex S.A. de C.V., a stock corporation organized under
the laws of the United Mexican States.
"Cemex Espana" means (a) Cemex Espana, S.A., a corporation organized
under the laws of the Kingdom of Spain, and (b) any Person that, as a result of
a combination, merger or asset transfer permitted by Section 10.2, assumes the
obligations of Cemex Espana under the Note Guarantee and this Agreement.
"Change in Control" means that Cemex 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% of the maximum number of
votes that might be cast at a general meeting of Cemex Espana, (ii) appoint or
remove all, or the majority, of the directors or other equivalent officers of
Cemex Espana or (iii) give directions with respect to the operating and
financial policies of Cemex Espana which the directors or other equivalent
officers of Cemex Espana are obliged to comply with or (b) hold at least 51% of
the common shares in Cemex Espana.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations promulgated thereunder from time to
time.
"Company" means Cemex Espana Finance LLC, a limited liability company
organized under the laws of Delaware.
"Confidential Information" is defined in Section 20.
"Consolidated Net Worth" means, at any date, the sum of the
consolidated shareholders' equity plus minority interests of Cemex Espana and
its Subsidiaries in accordance with Spanish GAAP.
"Consolidated Total Assets" means, at any time, the total assets of
Cemex Espana and its Subsidiaries, as determined in accordance with Spanish
GAAP by reference to the most recent financial statements supplied by Cemex
Espana pursuant to Section 7.1(a) or 7.1(b), provided that such financial
statements shall be adjusted to reflect the acquisition of any Subsidiary.
"Control Prepayment Date" is defined in Section 8.9(a).
"Default" means an event or condition the occurrence or existence of
which if it continues uncured would, with the lapse of time or the giving of
notice or both, become an Event of Default.
"Default Rate" means, with respect to any Note, that rate of interest
that is the greater of (i) 2% per annum above the rate of interest stated in
clause (a) of the first paragraph of such Note or (ii) 2% over the rate of
interest publicly announced by Citibank, N.A. in New York, New York as its
"base" or "prime" rate.
"Department of the Treasury Rule" means Blocked Persons, Specially
Designated Nationals, Specifically Designated Terrorists, Foreign Terrorist
Organizations, and Specially Designated Narcotics Traffickers: Additional
Designations of Terrorism-Related Blocked Persons, 66 Fed. Reg. 54,404 (2001).
"Disposition Prepayment Date" is defined in Section 8.4.
"Dollar" and the sign "$" mean lawful currency of the United States of
America.
"EBITDA" means, 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 amortization of intangible assets plus annual
amortization of start-up costs of Cemex Espana and its Subsidiaries plus
dividends received from non-consolidated companies, 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 Spanish GAAP, where:
"Cemex Capital Contributions" means contributions in cash to the
capital of Cemex Espana by Cemex or by any of its Subsidiaries not
being a Subsidiary of Cemex Espana made after January 1, 2002.
"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.
"Royalty Expenses" means expenses incurred by Cemex Espana or
any of its Subsidiaries to Cemex or any of its Subsidiaries not being
a Subsidiary of Cemex Espana as (a) consideration for the granting to
Cemex Espana or any Subsidiary of a license 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 or any of its Subsidiaries not being a
Subsidiary of Cemex Espana; 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.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with Cemex Espana
under section 414 of the Code.
"EU" means the European Union.
"euro" or "(euro)" means the single currency of participating member
states of the EU.
"Event of Default" is defined in Section 11.
"Excess Asset Disposition" is defined in Section 10.4.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Disposition" is defined in Section 10.4.
"Excluded Subsidiary Guarantor" means any of the Subsidiaries that are
Guarantors when the Note Guarantee is initially delivered; provided that any
other Subsidiary that is a Guarantor shall be treated as an Excluded Subsidiary
Guarantor for purposes of this Agreement if legal opinions and other evidence
are delivered to the holders of Notes sufficient to establish to the reasonable
satisfaction of the Required Holders and their legal advisers that the
obligations of such Guarantor under the Note Guarantee ranks and will continue
to rank at least pari passu with all other unsecured and unsubordinated
Financial Indebtedness of such Guarantor, including in a bankruptcy or
insolvency proceeding.
"Fair Market Value" means, at any time and with respect to any
property, the sale value of such property that would be realized in an
arm's-length sale at such time between an informed and willing buyer and an
informed and willing seller (neither being under a compulsion to buy or sell).
"Finance Charges" means, for any 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 to the 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 Spanish GAAP.
"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
Securitizations shall be deemed not 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) 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 a Lien 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) Guaranties of Financial Indebtedness of other Persons.
"Financing Documents" mean this Agreement, the Notes and the Note
Guarantee.
"Foreign Pension Plan" means any plan, fund or similar program (a)
established or maintained outside the United States of America by any one or
more of Cemex Espana and its Subsidiaries primarily for the benefit of
employees (substantially all of whom are Persons not residing in the United
States of America) of one or more of Cemex Espana and its Subsidiaries, which
plan, fund or other similar program provides for retirement income for such
employees or results in a deferral of income for such employees in
contemplation of retirement and (b) not otherwise subject to ERISA.
"GAAP" means, in relation to an Obligor, the generally accepted
accounting principles applicable to it in the country of its organization from
time to time.
"Governmental Authority" means
(a) the government of
(i) the Kingdom of Spain, The Netherlands, the United States
of America or any State or other political subdivision thereof, or
(ii) any jurisdiction in which Cemex Espana or any
Subsidiary conducts all or any part of its business, or that asserts
jurisdiction over any properties of Cemex Espana or any Subsidiary or
(b) any entity exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, any such government.
"Guarantor" means (a) each of (i) Cemex Espana, (ii) Cemex Caracas
Investments B.V., a limited liability company organized under the laws of The
Netherlands, (iii) Cemex Caracas II Investments B.V., a limited liability
company organized under the laws of The Netherlands, (iv) Cemex Egyptian
Investments B.V., a limited liability company organized under the laws of The
Netherlands, (v) Cemex Manila Investments B.V., a limited liability company
organized under the laws of The Netherlands, and (vi) Sandworth Plaza Holding
B.V., a limited liability company organized under the laws of The Netherlands,
(b) any Person that, as a result of a consolidation, merger or asset transfer
permitted by Section 10.2, assumes the obligations of a Person described in
clause (a) above under the Note Guarantee and (if applicable) this Agreement
and (c) any other Person that executes a joinder of the Note Guarantee from
time to time; provided that any of the foregoing Persons may cease to be a
Guarantor as provided in Section 10.2(a).
"Guaranty" means any guaranty 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.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety,
the removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polycholorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose name
such Note is registered in the register maintained by the Company pursuant to
Section 13.1.
"Holding Company" means, in relation to a company or a corporation, a
company or corporation in respect of which the first company or corporation is
a Subsidiary.
"Institutional Investor" means (a) any original purchaser of a Note,
(b) any holder of a Note holding more than $5,000,000 of the aggregate
principal amount of the Notes then outstanding and (c) any bank, trust company,
savings and loan association or other financial institution, any pension plan,
any investment company, any insurance company, any broker or dealer, or any
other similar financial institution or entity, regardless of legal form.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person.
"Long-Term Indebtedness" means Financial Indebtedness the maturity of
which is more than one year after the date on which it was incurred.
"Make-Whole Amount" is defined in Section 8.8.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets, properties, or prospects of Cemex Espana
and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of
Cemex Espana and its Subsidiaries taken as a whole, (b) the ability of Cemex
Espana or the Company to perform its obligations under this Agreement and the
other Financing Documents or (c) the validity or enforceability of this
Agreement or any other Financing Document.
"Material Subsidiary" means those Persons identified as such in
Schedule 5.4 and any other Subsidiary of Cemex Espana which, at any time after
the date hereof:
(i) has total assets representing 5% or more of the total
Consolidated Total Assets; and/or
(ii) has revenues representing 5% or more of the consolidated
net turnover of Cemex Espana and its Subsidiaries.
in each case calculated on a consolidated basis and any Holding Company of any
such Subsidiary (unless such company is a Guarantor hereunder).
Compliance with the conditions set out in clauses (i) and (ii) shall
be determined by reference to the most recent financial statements supplied by
Cemex Espana pursuant to Section 7.1(a) or 7.1(b).
"Memorandum" is defined in Section 5.3.
"Moody's" means Moody's Investor Services Inc.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"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 Cemex Espana and its Subsidiaries at such time: cash on hand, any
fixed-rate or floating-rate marketable debt security that is rated A or better
by S&P or A2 or better by Moody's, commercial paper that is rated A-2 or better
by S&P or P-2 or better by Moody's, investments in money market funds, banker's
acceptances, short-term deposits and other liquid investments.
"Net Proceeds Amount" means, with respect to any sale or transfer of
property by any Person, an amount equal to (a) the aggregate amount of the
consideration (valued at the Fair Market Value of such consideration at the
time of the consummation of such sale or transfer) received by such Person in
respect of such sale, minus (b) the sum of (i) all ordinary and reasonable
out-of-pocket costs and expenses actually incurred by such Person in connection
with such sale or transfer, (ii) taxes paid or reasonably estimated by such
Person to be payable as a result thereof, (iii) amounts required to be applied
to the repayment of any Financial Indebtedness secured by a Lien on the asset
subject to such sale or transfer, (iv) appropriate amounts to be provided by
such Person as a reserve against any liabilities associated with the assets
sold or transferred in such sale or disposition and retained by such Person
after such sale or disposition, including pension and other post-employment
benefit liabilities and liabilities related to environmental matters and
liabilities under any indemnification obligation associated with the assets
sold or disposed of in such sale or transfer and (v) amounts applied to the
acquisition of assets as contemplated by Section 10.4(2) within one year of
such sale or transfer.
"Notarization" is defined in Section 10.7(a).
"Note Guarantee" means a Note Guarantee to be entered into by Cemex
Espana and the other Guarantors in favor of the holders of Notes, as amended,
modified or supplemented from time to time.
"Notes" is defined in Section 1.
"Obligor" means the Company, Cemex Espana and each other Guarantor.
"Off-Balance-Sheet Transactions" means any present or future financing
transaction not reflected as indebtedness on the consolidated balance sheet of
Cemex Espana, but being structured in a way that may result in payment
obligations by Cemex Espana and its Subsidiaries for credit-related losses,
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 Cemex
Espana and its Subsidiaries (e.g., via a put-option agreement or
similar structures) under which payments are incapable of being
triggered until June 15, 2015; 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.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of Cemex Espana or of an officer of the manager
of the Company whose responsibilities extend to the subject matter of such
certificate.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Permitted Lien" is defined in Section 10.3(a).
"Permitted Notarization" is defined in Section 10.7(a).
"Permitted Securitization" means a sale, transfer or other
securitization of receivables and related assets by Cemex Espana 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 of the jurisdiction in which such originator is organized, (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, holders of such obligations of such Special Purpose Vehicle do not
have recourse to Cemex Espana or its Subsidiaries (other than a Special Purpose
Vehicle) for credit-related losses on such receivables.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is subject to Title IV of ERISA and that is or, within the
preceding five years, has been established or maintained, or to which
contributions are or, within the preceding five years, have been made or
required to be made, by Cemex Espana or any ERISA Affiliate or with respect to
which Cemex Espana or any ERISA Affiliate may have any liability, but excluding
any Foreign Pension Plan.
"Preferred Stock" means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"Priority Indebtedness" means, at any time and without duplication,
(i) Financial Indebtedness of Cemex Espana or its Subsidiary as to which a
valid Notarization is in effect, excluding Permitted Notarizations of the type
described in clauses (i), (ii) and (iv) of Section 10.7(a), (ii) Financial
Indebtedness of Subsidiaries (other than Excluded Subsidiary Guarantors and the
Company), excluding Financial Indebtedness of the type described in clauses (a)
through (h) of Section 10.6 and (iii) Financial Indebtedness secured by Liens
on the assets of Cemex Espana or its Subsidiaries, other than Financial
Indebtedness secured by Liens described in clauses (i) through (x) of Section
10.3(a).
"Pro Rata Amount", for any Note at any time with respect to any
payment of Senior Debt in connection with a Substantial Asset Disposition,
means an amount equal to the product of (x) an amount equal to the Net Proceeds
Amount of such Substantial Asset Disposition being applied to the payment of
Senior Debt multiplied by (y) a fraction the numerator of which is the
outstanding principal amount of such Note and the denominator of which is the
aggregate principal amount of Senior Debt of Cemex Espana and its Subsidiaries.
"property" or "properties" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, choate
or inchoate.
"PTE" is defined in Section 6.2.
"Purchasers" means the purchasers of the Notes named on Schedule A to
the Agreement.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Related Taxes" is defined in Section 14.3(a).
"Relevant Period" means each period of twelve months ending on the
last day of the second quarter of Cemex Espana's fiscal year and each period of
twelve months ending on the last day of Cemex Espana's fiscal year.
"Required Holders" means, at any time, the holders of more than 50% of
the aggregate principal amount of the Notes at the time outstanding (exclusive
of Notes then owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of Cemex Espana with responsibility for the administration of the
relevant portion of this Agreement.
"Rolling Basis" means the calculation of a ratio or an amount made
with respect to a Relevant Period in respect to the twelve immediately
preceding months ending on the last day of such Relevant Period.
"S&P" means Standard and Poor's Ratings Group.
"Section 8.4 Notice" is defined in Section 8.4.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Senior Debt" means all Financial Indebtedness of Cemex Espana and its
Subsidiaries including interest thereon, whether outstanding on the Closing
date or thereafter incurred, unless in the instrument creating or evidencing
the same or pursuant to which the same is outstanding it is provided that such
obligations are subordinated in right of payment to the Notes or to the Note
Guarantee; provided that "Senior Debt" shall not include (1) any obligation of
Cemex Espana or the Company to any Subsidiary or of any Subsidiary to another
Subsidiary, (2) any liability for Federal, state, local or other taxes or (3)
any accounts payable to trade creditors in the ordinary course of business.
"Senior Financial Officer" means the Financing Director or the
Treasurer of Cemex Espana or any other person authorized by the Board of
Directors of Cemex Espana to act on behalf of Cemex Espana.
"Short-Term Indebtedness" means Financial Indebtedness the maturity of
which is less than or equal to one year after the date on which it was
incurred.
"Source" is defined in Section 6.2.
"Spanish GAAP" means accounting principles generally accepted in Spain
from time to time.
"Spanish Public Document" means any obligation in an Escritura Publica
or documento intervenido.
"Special Purpose Vehicle" means a trust, limited liability company,
partnership or other special purpose Person established to implement a
securitization of receivables, provided that the business of such Person is
limited to acquiring, servicing and funding receivables and related assets and
activities incidental thereto.
"Stake" means a number of shares in Subsidiary held by Cemex Espana or
another Subsidiary, the disposal of which would cause the first such Person to
cease to be a Subsidiary of the second such Person.
"Subordinated Debt" means debt granted by Cemex or any of its
Subsidiaries other than Cemex Espana or one of its Subsidiaries to Cemex Espana
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 Cemex Espana) until all
Notes have been paid in full.
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries
or such Person and one or more of its Subsidiaries owns sufficient equity or
voting interests to enable it or them (as a group) ordinarily, in the absence
of contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person
or one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of
its Subsidiaries). Unless the context otherwise clearly requires, any reference
to a "Subsidiary" is a reference to a Subsidiary of Cemex Espana.
"Substantial Asset Disposition" is defined in Section 10.4.
"SVO" means the Securities Valuation Office of the National
Association of Insurance Commissioners, or any successor thereto.
"Tax Prepayment Date" is defined in Section 8.3.
"Tax Prepayment Notice" is defined in Section 8.3.
"Taxing Jurisdiction" is defined in Section 14.3(a).
"Total Borrowings" means, with respect to Cemex Espana and its
Subsidiaries, without duplication and determined on a consolidated basis, all
Guaranties granted by such Person, plus all Off-Balance-Sheet Transactions
entered into by Cemex Espana and its Subsidiaries, plus all Financial
Indebtedness of Cemex Espana and its Subsidiaries, but excluding any
Subordinated Debt.
"Tranche 1 Notes" is defined in Section 1.
"Tranche 2 Notes" is defined in Section 1.
"Tranche 3 Notes" is defined in Section 1.
"Voting Stock" means, with respect to any corporation, any Capital
Stock of such corporation whose holders are entitled under ordinary
circumstances to vote for the election of directors of such corporation
(irrespective of whether at the time Capital Stock of any other class or
classes shall have or might have voting powers by reason of the happening of
any contingency).
SCHEDULE 4.9
CHANGES IN CORPORATE STRUCTURE
None.
SCHEDULE 5.3
DISCLOSURE EXCEPTIONS
None.
SCHEDULE 5.4
SUBSIDIARIES (INCLUDING IDENTIFICATION OF MATERIAL SUBSIDIARIES)
AS OF MAY 31, 2003
- ---------------------------------------------------------- ------------------------- ----------------------------
COMPANY'S NAME PLACE OF INCORPORATION SHAREHOLDING PARTICIPATION
- ---------------------------------------------------------- ------------------------- ----------------------------
AGROPECUARIA ROSARITO, C.A. Venezuela 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
ALTAIR (INDIA) PRIVATE LIMITED India 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
APO CEMENT CORPORATION Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
APO LAND & QUARRY CORPORATION Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
ARICEMEX, S.A. Spain 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
ARIDOS SILICIOS, S.A. Spain 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
ARIDOS Y ASFALTOS CANARIOS, S.A. Spain 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
ARRENDAMIX DE VENEZUELA, S.A. Venezuela 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
ASESORIAS Y GESTIONES LIMITADA Colombia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
ASSIUT CEMENT COMPANY Egypt 80%
- ---------------------------------------------------------- ------------------------- ----------------------------
AYFER TEKSTIL LTD. STI. Turkey 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
BEDROCK HOLDINGS, INC. Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
C.A. VENCEMOS Venezuela 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
CANADIAN MEDUSA CEMENT LIMITED Ontario 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CARIBBEAN FUNDING LLC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CECAR INC. Cayman Islands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMAR INC. Cayman Islands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMENT TRANSIT COMPANY Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMENTIFICIO DI MONTALTO SPA Italy 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMENTILCE SRL Italy 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMENTO BAYANO, S.A. Panama 99%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMENTO CERRO BLANCO, S.A. Argentina 65%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMENTOS DEL PACIFICO, S.A. Costa Rica 98%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMENTOS NACIONALES, S.A. Dominican Republic 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX (CAMBODIA) CO. LTD. Cambodia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX (THAILAND) CO. LTD. Thailand 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX ADMINISTRACIONES LTDA. Colombia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX ASIA HOLDINGS LTD. Singapore 92%*
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX ASIA PACIFIC INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX ASIA PTE. LTD. Singapore 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX ASIA VENTURES INC. Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX ASIAN INVESTMENTS N.V. Netherlands Antilles 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX BETON, S.A.S. France 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CALIFORNIA CEMENT LLC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CAPE VERDIAN INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CAPITAL DE COLOMBIA, S.A. Colombia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CARACAS II INVESTMENTS B.V. Netherlands 100% (G)
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CARACAS INVESTMENTS B.V. Netherlands 100% (G)
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CARIBE II INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CEMENT (BANGLADESH) LIMITED Bangladesh 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CEMENT OF TEXAS, L.P. Texas 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CEMENT, INC. Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CHILE INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX COLOMBIA, S.A. Colombia 98%*
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CONCRETE HOLDINGS, LLC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CONCRETOS DE COLOMBIA, S.A. Colombia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CONCRETOS, S.A. Panama 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CONSTRUCTION MATERIALS, L.P. Texas 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX CORP. Delaware 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX DANISH INVESTMENTS B.V. Netherlands 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX EGYPT FOR DISTRIBUTION COMPANY Egypt 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX EGYPT FOR SERVICES Egypt 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX EGYPTIAN INVESTMENTS B.V. Netherlands 100% (G)
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX ELEVEN INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX ENVIRONMENTAL LLC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX ESPANA FINANCE LLC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX ESPANA INTERNATIONAL CAPITAL LLC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX FINANCE EUROPE B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX FINANCE, INC. Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX FOUNDATION Ohio 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX FOURTEEN INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX GENERACION Y COMERCIALIZACION DE ENERGIA, S.A. Colombia 100%
E.S.P.
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX GLOBAL INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX GRANULATS, SAS France 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX HOLDINGS INC. Delaware 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX HUNGARY KFT Hungary 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX INDONESIA INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX INTERNATIONAL CAPITAL LLC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX INVESTMENTS AKTIENGESELLSCHAFT Liechtenstein 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX INVESTMENTS, INC. Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX LAND COMPANY Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX LEASING, INC. Arizona 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX MANAGEMENT, INC. Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX MANILA INVESTMENTS B.V. Netherlands 100% (G)
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX NETHERLANDS, B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX NICARAGUA, S.A. Nicaragua 98%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX NY CORPORATION Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX PACIFIC COAST CEMENT CORPORATION Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX PUERTO RICO, INC. Puerto Rico 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX READY MIX LLKHARASANAH EL-JHAZAA Egypt 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX SIERRA INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX SIX INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX SMI HOLDINGS LLC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX STRATEGIC PHILIPPINES INC. Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX TEN INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX THIRTEEN INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX TRADING EUROPE, S.A. Spain 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX TRANSPORTES DE COLOMBIA, S.A. Colombia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX TRUCKING, INC. California 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX TWELVE INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX VENEZUELA, S.A.C.A. Venezuela 76%*
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX VENTURES, INC. Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMEX, INC. Louisiana 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
CEMSAL Ltd. Ghana 75%
- ---------------------------------------------------------- ------------------------- ----------------------------
CENTRAL DE MEZCLAS, S.A. Colombia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CETACEA INVESTMENTS LIMITED Trinidad & Tobago 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CETRA INC. Cayman Islands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CHIQUIOJOS, S.A. Costa Rica 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
COLOMBIA HOLDINGS INC. Cayman Islands 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
COMERCIALIZADORA FERREX, C.A. Venezuela 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CONOMITA, S.A. Venezuela 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CONSTRUCCIONES E INVERSIONES DIAMANTE LTDA. Colombia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CONSTRUCTION FUNDING CORPORATION Ireland 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
CORBIN INVESTMENTS Cayman Islands 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
CUBIC HOLDINGS LTD Cayman Islands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
CX (THAILAND) LIMITED Thailand 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
DESARROLLOS DIADANILO, C.A. Venezuela 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
DESARROLLOS MULTIPLES INSULARES, INC. Puerto Rico 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
DIAMANTE TRANSPORTES LIMITADA Colombia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
DISTRIBUIDORA DE CEMENTO, S.A. Panama 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
EDGEWATER VENTURES CORPORATION Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
ENTREPRISES PASTORELLO TRAVAUX ROUTIERS, SAS France 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
ESPARTANA SHIPPING CO. Cayman Islands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
FLORIDA LIME CORPORATION Puerto Rico 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
FUNDACION DIAMANTE SAMPER Colombia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
GANDALF HOLDINGS CORPORATION Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
GESTION FRANCAZAL ENTREPRISES, SAS France 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
GOOD ASSETS LIMITED Thailand 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
GRANINTRA, S.A. Spain 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
GULF COAST PORTLAND CEMENT CO. Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
HISPAGOLD INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
HORMICEMEX, S.A. Spain 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
HORMISOL CANARIAS, S.A. Spain 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
IMPORTADORA CANARIA DE ARIDOS, S.L. Spain 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
INDEPENDIENTE SHIPPING CO. Cayman Islands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
INDUSTRIAS E INVERSIONES SAMPER, S.A. Colombia 98%
- ---------------------------------------------------------- ------------------------- ----------------------------
INMOBILIARIA VALLE DOS C.A. Venezuela 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
INMOBILIARIA Y ARRENDAMIENTO BAYANO, S.A. Panama 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
INTERNATIONAL COMPANY FOR SILOS LTD. Egypt 70%
- ---------------------------------------------------------- ------------------------- ----------------------------
INVERSIONES CALLEGARI, C.A. Venezuela 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
ISLAND QUARRY AND AGGREGATES CORP. Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
JAMES H. DREW CORPORATION Indiana 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
KOSMOS CEMENT COMPANY Kentucky 75%
- ---------------------------------------------------------- ------------------------- ----------------------------
LAI LIMITED Cayman Islands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
LATINASIAN INVESTMENTS PTE. LTD. Singapore 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
LIMESTONE MATERIALS, INC. Puerto Rico 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
LOMAS DEL TEMPISQUE, S.R.L. Costa Rica 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
LOTHLORIEN HOLDINGS CORPORATION Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
MACORIS INVESTMENTS Cayman Islands 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
MADISA B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
MEXAM TRADE, INC. Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
MILTON INTERNATIONAL CORP. Cayman Islands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
MOJAVE NORTHERN RAILROAD COMPANY California 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
NORTH TRANSPORT, INC. Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
OCCITAN INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
PACIFIC ASSETS N.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
PANAMA PACIFIC INVESTMENTS B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
PARMA CEMENTI SPA Italy 70%
- ---------------------------------------------------------- ------------------------- ----------------------------
PCG HOLDINGS, INC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
PETROLEUM COKE GRINDING, INC. Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
POLY BAGS AND PACKAGING, INC. Puerto Rico 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
PONCE CAPITAL CORPORATION Puerto Rico 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
PONCE EQUIPMENT AND MAINTENANCE COMPANY Puerto Rico 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
PT BINTANG POLINA PERKASA Indonesia 95%
- ---------------------------------------------------------- ------------------------- ----------------------------
PT CEMEX INDONESIA Indonesia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
PUERTO RICAN CEMENT COMPANY, INC. Puerto Rico 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
PUERTO RICO FINANCE LLC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
READY MIX CONCRETE, INC. Puerto Rico 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
RIVENDELL HOLDINGS CORPORATION Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
RODNEY H. GREENWAY, INC. Georgia 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
SANDSTONE STRATEGIC HOLDINGS, INC. Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
SANDWORTH PLAZA HOLDING B.V. Netherlands 100% (G)
- ---------------------------------------------------------- ------------------------- ----------------------------
SERVICIOS MUNDIALES DE CONSULTORIA SEMUCOSA, S.A. Venezuela 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
SERVICRETO LTDA. Colombia 70%
- ---------------------------------------------------------- ------------------------- ----------------------------
SHIRE HOLDINGS CORPORATION Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
SIERRA TRADING Cayman Islands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
SOLID CEMENT CORP. Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
SUNBELT CEMENT HOLDINGS, INC. Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
SUNBELT INVESTMENTS INC. Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
SUNBULK SHIPPING N.V. Netherlands Antilles 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
TENNESSEE GUARDRAIL, INC. Tennessee 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
TOULOUSE MIDI PYRENNEES ENROBES, S.A. France 57%
- ---------------------------------------------------------- ------------------------- ----------------------------
TRANSENERGY, INC. Texas 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
TRANSPORTES DE CEMENTO, S.A. Spain 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
TRANSPORTES SAN PEDRO, S.A. Dominican Republic 99%
- ---------------------------------------------------------- ------------------------- ----------------------------
TRICAP INVESTMENTS I-A, LLC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
TRICAP OPTION FUND A, LLC Delaware 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
TRIPLE DIME HOLDINGS INC. Philippines 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
TUNWOO CO. LTD Taiwan 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
UCIM, A.S. Turkey 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
VALCEM INTERNATIONAL B.V. Netherlands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
VALENCIANA DENMARK APS Denmark 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
VENCEMENT INVESTMENTS Cayman Islands 100%*
- ---------------------------------------------------------- ------------------------- ----------------------------
VENMARCA OCCIDENTE, C.A. Venezuela 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
VOGAN INVESTMENTS Cayman Islands 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
WESTERN RAIL ROAD COMPANY Texas 100%
- ---------------------------------------------------------- ------------------------- ----------------------------
* In Bold, material subsidiaries
(G) In Bold, Guarantor
As of May 31, 2003
BOARD OF DIRECTORS OF CEMEX ESPANA
LORENZO H. ZAMBRANO TREVINO
JOSE LUIS SAENZ DE MIERA ALONSO
IGNACIO ORTIZ MARTIN
HECTOR MEDINA AGUIAR
VICTOR MANUEL ROMO MUNOZ
RAMIRO VILLARREAL MORALES
MARCELO ZAMBRANO LOZANO
CEMEX ESPANA FINANCE LLC
MANAGER OF THE COMPANY:
CEMEX NETHERLANDS B.V., A DUTCH COMPANY WITH ITS REGISTERED OFFICE AT
RIVIERSTAETE, AMSTELDIJK 166 1079 LH AMSTERDAM, THE NETHERLANDS.
OFFICERS OF THE MANAGER:
HANS S. LEIJDESDORFF
JUAN M. PORTAL
SCHEDULE 5.8
LITIGATION
None.
SCHEDULE 5.11
LICENSE, ETC. EXCEPTIONS
None.
SCHEDULE 5.15
EXISTING FINANCIAL INDEBTEDNESS
[GRAPHIC OMITTED]
SCHEDULE 10.3
EXISTING LIENS
CONSOLIDATED GROUP
LIEN SCHEDULE (M (euro))
[GRAPHIC OMITTED]
SCHEDULE 10.7
EXISTING NOTARIZATIONS
Total Principal Amount of
Type of Indebtedness notarized as
Agreement Borrower/Guarantor Maturity date of May 31, 2003
Bilateral lines Cemex Espana S.A./n.a. Between June 2003 EUR 77,052,847 (1) (2)
and April 2006
Capital Lease contract Cemex Espana S.A./n.a. December 21st, 2003 EUR 1,060,362
Deferred purchase price Aricemex S.A./n.a. July, 2005 EUR 1,442,429
5-year term loan Cementos Diamante/ October 19th, 2004 US$ 55,672,250
Cemex Espana S.A.
5-year term loan Cemex Inc./ November 6th, 2005 US$ 325,000,000
Cemex Espana S.A.
(1) Corresponds to the total committed amount under the facilities
(2) (euro)21,459,227 matured on June 3,2003
EXHIBIT 1(a)
[FORM OF TRANCHE 1 NOTE]
CEMEX ESPANA FINANCE LLC
4.77% SENIOR NOTE, SERIES 2003, TRANCHE 1, DUE JUNE 15, 2010
No.[_____] [Date]
$[____________] PPN 15128@AA 1
FOR VALUE RECEIVED, the undersigned, CEMEX ESPANA FINANCE LLC (herein
called the "Company"), a limited liability company organized and existing under
the laws of Delaware, hereby promises to pay to [_________________________], or
registered assigns, the principal sum of [_______________________________]
DOLLARS on June 15, 2010, with interest (computed on the basis of a 360-day
year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of
4.77% per annum from the date hereof, payable semiannually, on the 15th day of
June and December in each year, commencing with the June 15th or December 15th
next succeeding the date hereof, until the principal hereof shall have become
due and payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Make-Whole Amount (as defined in the
Note Purchase Agreement referred to below), payable semiannually as aforesaid
(or, at the option of the registered holder hereof, on demand), at a rate per
annum from time to time equal to the greater of (i) 6.77% or (ii) 2% over the
rate of interest publicly announced by Citibank, N.A. from time to time in New
York, New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at Citibank, N.A, 111 Wall Street, 14th Floor, New York, New York
10043, Corporate Agency and Trust Department or at such other place as the
Company shall have designated by written notice to the holder of this Note as
provided in the Note Purchase Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to the Note Purchase Agreement, dated as of June 23,
2003 (as from time to time amended, supplemented or modified, the "Note
Purchase Agreement"), among the Company, Cemex Espana, S.A. and the respective
Purchasers named therein and is entitled to the benefits thereof. Each holder
of this Note will be deemed, by its acceptance hereof, (i) to have agreed to
the confidentiality provisions set forth in Section 20 of the Note Purchase
Agreement and (ii) to have made the representation set forth in Sections 6.1
and 6.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the Person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the issuer and holder hereof shall be governed by, the law of the
State of New York excluding choice-of-law principles of the law of such State
that would require the application of the laws of a jurisdiction other than
such State.
CEMEX ESPANA FINANCE LLC
By______________________
[Title]
EXHIBIT 1(b)
[FORM OF TRANCHE 2 NOTE]
CEMEX ESPANA FINANCE LLC
5.36% SENIOR NOTE, SERIES 2003, TRANCHE 2, DUE JUNE 15, 2013
No.[_____] [Date]
$[____________] PPN 15128@AB 9
FOR VALUE RECEIVED, the undersigned, CEMEX ESPANA FINANCE LLC (herein
called the "Company"), a limited liability company organized and existing under
the laws of Delaware, hereby promises to pay to [_________________________], or
registered assigns, the principal sum of [_______________________________]
DOLLARS on June 15, 2013, with interest (computed on the basis of a 360-day
year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of
5.36% per annum from the date hereof, payable semiannually, on the 15th day of
June and December in each year, commencing with the June 15th or December 15th
next succeeding the date hereof, until the principal hereof shall have become
due and payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Make-Whole Amount (as defined in the
Note Purchase Agreement referred to below), payable semiannually as aforesaid
(or, at the option of the registered holder hereof, on demand), at a rate per
annum from time to time equal to the greater of (i) 7.36% or (ii) 2% over the
rate of interest publicly announced by Citibank, N.A. from time to time in New
York, New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at Citibank, N.A, 111 Wall Street, 14th Floor, New York, New York
10043, Corporate Agency and Trust Department or at such other place as the
Company shall have designated by written notice to the holder of this Note as
provided in the Note Purchase Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to the Note Purchase Agreement, dated as of June 23,
2003 (as from time to time amended, supplemented or modified, the "Note
Purchase Agreement"), among the Company, Cemex Espana, S.A. and the respective
Purchasers named therein and is entitled to the benefits thereof. Each holder
of this Note will be deemed, by its acceptance hereof, (i) to have agreed to
the confidentiality provisions set forth in Section 20 of the Note Purchase
Agreement and (ii) to have made the representations set forth in Sections 6.1
and 6.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the Person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the issuer and holder hereof shall be governed by, the law of the
State of New York excluding choice-of-law principles of the law of such State
that would require the application of the laws of a jurisdiction other than
such State.
CEMEX ESPANA FINANCE LLC
By______________________
[Title]
EXHIBIT 1(c)
[FORM OF TRANCHE 3 NOTE]
CEMEX ESPANA FINANCE LLC
5.51% SENIOR NOTE, SERIES 2003, TRANCHE 3, DUE JUNE 15, 2015
No.[_____] [Date]
$[____________] PPN 15128@AC 7
FOR VALUE RECEIVED, the undersigned, CEMEX ESPANA FINANCE LLC (herein
called the "Company"), a limited liability company organized and existing under
the laws of Delaware, hereby promises to pay to [_________________________], or
registered assigns, the principal sum of [_______________________________]
DOLLARS on June 15, 2015, with interest (computed on the basis of a 360-day
year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of
5.51% per annum from the date hereof, payable semiannually, on the 15th day of
June and December in each year, commencing with the June 15th or December 15th
next succeeding the date hereof, until the principal hereof shall have become
due and payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Make-Whole Amount (as defined in the
Note Purchase Agreement referred to below), payable semiannually as aforesaid
(or, at the option of the registered holder hereof, on demand), at a rate per
annum from time to time equal to the greater of (i) 7.51% or (ii) 2% over the
rate of interest publicly announced by Citibank, N.A. from time to time in New
York, New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at Citibank, N.A, 111 Wall Street, 14th Floor, New York, New York
10043, Corporate Agency and Trust Department or at such other place as the
Company shall have designated by written notice to the holder of this Note as
provided in the Note Purchase Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to the Note Purchase Agreement, dated as of June 23,
2003 (as from time to time amended, supplemented or modified, the "Note
Purchase Agreement"), among the Company, Cemex Espana, S.A. and the respective
Purchasers named therein and is entitled to the benefits thereof. Each holder
of this Note will be deemed, by its acceptance hereof, (i) to have agreed to
the confidentiality provisions set forth in Section 20 of the Note Purchase
Agreement and (ii) to have made the representations set forth in Sections 6.1
and 6.2 of the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the Person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the issuer and holder hereof shall be governed by, the law of the
State of New York excluding choice-of-law principles of the law of such State
that would require the application of the laws of a jurisdiction other than
such State.
CEMEX ESPANA FINANCE LLC
By______________________
[Title]
EXHIBIT 4.4(a)
FORM OF OPINION OF COUNSEL
FOR CEMEX ESPANA
[To be completed]
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL NEW YORK
COUNSEL TO THE COMPANY
Matters To Be Covered In
Opinion of Special New York Counsel To the Company
1. The Company being duly formed, validly existing and in good
standing and having requisite limited liability company power and authority to
issue and sell the Notes and to execute and deliver the documents.
2. Due authorization and execution of the documents by the Company,
and such documents being legal, valid, binding and enforceable against the
Company and the Guarantors.
3. No conflicts with US or NY laws or other material English language
debt agreements.
4. All US and NY consents required to issue and sell the Notes and to
execute and deliver the documents having been obtained.
5. The Notes not requiring registration under the Securities Act of
1933, as amended; no need to qualify an indenture under the Trust Indenture Act
of 1939, as amended.
6. Company not an "investment company", or a company "controlled" by
an "investment company", under the Investment Company Act of 1940, as amended.
EXHIBIT 4.4(c)
FORM OF OPINION OF SPECIAL
NETHERLANDS COUNSEL
[To be completed]
EXHIBIT 4.4(d)
FORM OF OPINION OF SPECIAL US COUNSEL
TO THE PURCHASERS
[To be completed]
EXHIBIT 4.4(e)
FORM OF OPINION OF SPECIAL SPANISH COUNSEL
TO THE PURCHASERS
[To be completed]