EXHIBIT 4.14
[EXECUTION COPY]
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CEMEX ESPANA FINANCE LLC
(Y)4,980,600,000 1.79% Senior Notes, Series 2004, Tranche 1, due 2010
(Y)6,087,400,000 1.99% Senior Notes, Series 2004, Tranche 2, due 2011
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NOTE PURCHASE AGREEMENT
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Dated as of April 15, 2004
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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........................................................................2
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......................................................................12
6.1 Purchase for Investment.......................................................................12
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......................................................................17
8.1 Stated Maturity...............................................................................17
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.............................................................20
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..................................................................................46
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
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
1.79% Senior Notes, Series 2004, Tranche 1, due April 15, 2010
1.99% Senior Notes, Series 2004, Tranche 2, due April 15, 2011
as of April 15, 2004
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) (Y)4,980,600,000
aggregate principal amount of its 1.79% Senior Notes, Series 2004, Tranche 1,
due April 15, 2010 (the "Tranche 1 Notes") and (ii) (Y)6,087,400,000 aggregate
principal amount of its 1.99% Senior Notes, Series 2004, Tranche 2, due April
15, 2011 (the "Tranche 2 Notes") (the Tranche 1 Notes and the Tranche 2 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) and Exhibit 1(b), 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 LLP, 1675 Broadway, New
York, New York 10019, at 10:00 a.m., New York time, at a closing (the
"Closing") on April 15, 2004 or on such other Business Day thereafter on or
prior to April 15, 2004 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 (Y)50,000,000 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 JPY: ES29 1474 0000 1900 1102 2022 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 LLP, 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
Warendorf, 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 formation 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 April 15, 2012.
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, Banc of America Securities, has
delivered to each Purchaser a copy of a Private Placement Memorandum, dated
February 2004 (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 December 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)
until September 1, 2004, and from and following September 1, 2004 Articles 90
and 91 of the Spanish Insolvency Law (Law 22/2003), 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, such statements may be provided 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 April 15, 2010.
(b) The entire principal amount of the Tranche 2 Notes shall become
due and payable on April 15, 2011.
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 a minimum
amount of (Y)100,000,000 and otherwise in multiples of (Y)10,000,000) 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 (which shall be a Business Day), 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 prepaid, 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 Japanese government bonds will be
0.25%). 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 or 8.3, 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.
"Recognized Yen Market Maker" means any financial
institution that makes regular markets in Japanese Government Bonds
and Japanese Government Bond-based securities and financial products,
as shall be agreed between the Required Holders and Cemex Espana or,
following the occurrence and continuance of an Event of Default, as
reasonably determined by the Required Holders.
"Reinvestment Yield" means, with respect to the Called
Principal of any Note, the yield to maturity implied by 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 displays designated as Bloomberg Financial
Markets News screen BTMM JN (or such other Bloomberg Financial
Markets News display as may replace such BTMM JN screen) for actively
traded Japanese Government Bonds having a maturity equal to the
remaining life of such Called Principal as of such Settlement Date,
provided that if such yields are not reported as of such time or the
yields reported as of such time are not ascertainable, such yield to
maturity shall be implied by the average of the rates as determined
by two Recognized Yen Market Makers. Such implied yields will be
determined, if necessary, by (i) converting quotations to
bond-equivalent yields in accordance with accepted financial practice
and (ii) interpolating linearly between (x) the actively traded
Japanese Government Bonds with a maturity closest to and greater than
the remaining life and (y) the actively traded Japanese Government
Bonds with a maturity closest to and less than the remaining life.
"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 (Y)100,000,000, 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
(Y)100,000,000. 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 Spain, 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 therefor 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 Japanese Yen. All payments under the Notes shall be
made in Japanese yen.
(b) Certain Expenses. Unless otherwise stated herein, 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 Japanese Yen. 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 (other than amounts due under Section
15.1) 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 Japanese yen 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 Japanese yen 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). Amounts payable pursuant
to this Section 15.1 shall be payable in Dollars.
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, and with a copy
(which shall not constitute notice hereunder) to Mayer, Brown, Rowe
& Maw LLP, 1675 Broadway, 19th Floor, New York, NY 10019, Facsimile
number: 1-212-262-1910, to the attention of Peter V. Darrow, 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
--------------------------------
Name: Hector Campa Martinez
-------------------------
Title: Attorney-in-Fact
-------------------
CEMEX ESPANA FINANCE LLC
By: /s/ Hector Campa Martinez
--------------------------------
Name: Hector Campa Martinez
-------------------------
Title: Attorney-in-Fact
-------------------
The foregoing is hereby agreed to as of the date thereof.
JOHN HANCOCK LIFE INSURANCE COMPANY
By: /s/ David E. Johnson
------------------------------------------------
David E. Johnson
Managing Director
NATIONWIDE MUTUAL INSURANCE COMPANY
By: /s/ Mark. W. Poeppelman
------------------------------------------------
Name: Mark W. Poeppelman
Title: Authorized Signatory
MANULIFE LIFE INSURANCE COMPANY
By: /s/ John Shed
------------------------------------------------
Name: John Shed
Title: Vice President & Managing Corporate Officer
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Illegible
------------------------------------------------
Name: Illegible
Title: Director
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Robert B. Bodett
------------------------------------------------
Name: Robert B. Bodett
By: /s/ Jerry D. Zinkula
------------------------------------------------
Name: Jerry D. Zinkula
Authorized Signatories
SCHEDULE A
----------
INFORMATION RELATING TO PURCHASERS
TRANCHE 1 NOTES
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 or Tokyo, Japan 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, New
York City or Tokyo, Japan 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 to be on a recourse basis));
(b) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar instrument;
(c) the amount of any liability in respect of any lease or hire
purchase contract that would, in accordance with Spanish GAAP, be treated as a
Capital Lease;
(d) 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 (Y)500,000,000 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.
"Japanese yen" and the sign "(Y)" mean lawful currency of Japan.
"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 April 15, 2011; 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 document granted before either a
Spanish public notary or a competent Spanish public employee observing the
formalities of applicable Spanish law.
"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 a Subsidiary held by Cemex Espana
or held by 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.
"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 February 29, 2004
- -------------------------------------------------------------------------------------------------------
COMPANY'S PLACE OF SHAREHOLDING
NAME INCORPORATION 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 Y ASFALTOS CANARIOS, S.A. Spain 100%
- -------------------------------------------------------------------------------------------------------
ARRENDAMIX DE VENEZUELA, S.A. Venezuela 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%
- -------------------------------------------------------------------------------------------------------
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 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 COSTA RICA, S.A. Costa Rica 99%
- -------------------------------------------------------------------------------------------------------
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 AFRICA AND MIDDLE EAST, A.p.S. Denmark 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%
- -------------------------------------------------------------------------------------------------------
COMERCIALIZADORA FERREX, C.A. Venezuela 100%
- -------------------------------------------------------------------------------------------------------
CONSTRUCCIONES E INVERSIONES DIAMANTE LTDA. Colombia 100%
- -------------------------------------------------------------------------------------------------------
CONSTRUCTION FUNDING CORPORATION Ireland 100%*
- -------------------------------------------------------------------------------------------------------
CX (THAILAND) LIMITED Thailand 100%
- -------------------------------------------------------------------------------------------------------
DESARROLLOS MULTIPLES INSULARES, INC. Puerto Rico 100%
- -------------------------------------------------------------------------------------------------------
DIAMANTE TRANSPORTES LIMITADA EN LIQUIDACION Colombia 100%
- -------------------------------------------------------------------------------------------------------
DISTRIBUIDORA DE CEMENTO, S.A. Panama 100%
- -------------------------------------------------------------------------------------------------------
EDGEWATER VENTURES CORPORATION Philippines 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. EN LIQUIDACION Colombia 98%
- -------------------------------------------------------------------------------------------------------
INMOBILIARIA VALLE DOS C.A. Venezuela 100%
- -------------------------------------------------------------------------------------------------------
INMOBILIARIA Y ARRENDAMIENTO BAYANO, S.A. Panama 100%
- -------------------------------------------------------------------------------------------------------
INTERNATIONAL COMPANY FOR SILOS LTD. Egypt 70%
- -------------------------------------------------------------------------------------------------------
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 POLINDO 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)
- -------------------------------------------------------------------------------------------------------
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 February 29, 2004
BOARD OF DIRECTORS OF CEMEX ESPANA
LORENZO H. ZAMBRANO TREVINO
JOSE LUIS SAENZ DE MIERA ALONSO
IGNACIO MADRIDEJOS FERNANDEZ
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. PORTA
SCHEDULE 5.5
FINANCIAL STATEMENTS
1. Consolidated Annual Accounts December 31, 2002 and 2001 and 2002
Directors' Report (With Auditors' Report Thereon)
2. Balance Sheet and Statement of Profit and Loss for the year ended
December 31, 2003
SCHEDULE 5.8
LITIGATION
None.
SCHEDULE 5.11
LICENSE, ETC. EXCEPTIONS
None.
SCHEDULE 5.15
EXISTING FINANCIAL INDEBTEDNESS
As of 03.31.04
Amounts in M (euro)*
- ------------------------------------------------------------------------------------------------------
BORROWER INSTRUMENT OUTSTANDING FINAL
AMOUNT MATURITY
- ------------------------------------------------------------------------------------------------------
Bilateral Lines 478 April 2004-April 2006
CEMEX ESPANA RCF (euro) 300 M(1) 220 October 2004
Others 24 July 2005
- ------------------------------------------------------------------------------------------------------
SUBTOTAL 722
- ------------------------------------------------------------------------------------------------------
Priv. Plac. ((euro) 50 M) 50 March 2006
Priv. Plac. ((euro) 315 M) 256 March 2006
CEMEX INC. Priv. Plac. ((euro) 396 M) 322 March 2006
SBLC(2) 45 Dec 2004-April 2025
Others 13 Between 2004-2009
- ------------------------------------------------------------------------------------------------------
SUBTOTAL 685
- ------------------------------------------------------------------------------------------------------
Priv. Plac. ($103 M) 84 June 2010
CEMEX ESPANA FINANCE LLC Priv. Plac. ($96 M) 78 June 2013
Priv. Plac. ($201 M) 322 June 2015
- ------------------------------------------------------------------------------------------------------
SUBTOTAL 327
- ------------------------------------------------------------------------------------------------------
CEMEX FINANCE EUROPE B.V. EMTN 158 July 2004-July 2006
- ------------------------------------------------------------------------------------------------------
SUBTOTAL 158
- ------------------------------------------------------------------------------------------------------
CEMEX COLOMBIA S.A. 5-year Term Loan 30 April 2004
- ------------------------------------------------------------------------------------------------------
SUBTOTAL 30
- ------------------------------------------------------------------------------------------------------
PUERTO RICAN CEMENT $40 M Credit Line 24 May 2005
$50 M Credit Line 28 January 2006
- ------------------------------------------------------------------------------------------------------
SUBTOTAL 53
- ------------------------------------------------------------------------------------------------------
ASSIUT CEMENT COMPANY Bank loans 8 June 2005-July 2009
Overdraft lines 2 May-June 2004
- ------------------------------------------------------------------------------------------------------
SUBTOTAL 10
- ------------------------------------------------------------------------------------------------------
APO CEMENT CORPORATION ECA Loan 20 December 2004-March 2006
ST Bank debt 0 March 2005
- ------------------------------------------------------------------------------------------------------
SUBTOTAL 20
- ------------------------------------------------------------------------------------------------------
CEMEX CEMENT BANGLADESH Bilateral Line 2 August 2004
- ------------------------------------------------------------------------------------------------------
SUBTOTAL 2
- ------------------------------------------------------------------------------------------------------
CEMENTOS NACIONALES Intercompany debt 12 September 2004
Others 2 September 2007
- ------------------------------------------------------------------------------------------------------
SUBTOTAL 14
- ------------------------------------------------------------------------------------------------------
OTHER COMPANIES Credit Lines 11 --
- ------------------------------------------------------------------------------------------------------
SUBTOTAL 11
- ------------------------------------------------------------------------------------------------------
TOTAL 2,033
----- -----
* Exchange rates:
(euro)/USD=0.8121
JPY/(euro)=128.51
(1) To be prepaid on April 16 with the proceeds of a new EUR 400 million
multicurrency loan signed on March 30, 2004 with final maturity in March 2009.
(2) Stand By Letters of Credit over tax-exempt bonds. Maturities shown
correspond to these bonds SBLC renewed on an annual basis.
SCHEDULE 10.3
EXISTING LIENS
CONSOLIDATED GROUP
LIEN SCHEDULE (M (euro)) AS OF 03.31.04
- ------------------------------------------------------------------------------
COMPANY LENDER LIEN CONCEPT BALANCE
CEMEX Construction Materials, L.P. GE Capital 7964, 8069 Equipment related with the Credit 0.89
CEMEX Construction Materials, L.P. City of Long Beach Cement Terminal (Capital Lease Obligation) 7.90
CEMEX Construction Materials, L.P. Hampton Land related with Credit 0.23
CEMEX Construction Materials, L.P. RIO Land related with the credit 3.91
CEMEX Construction Materials, L.P. Met-South, Inc. Ash storage facility 0.17
------------
13.11
SCHEDULE 10.7
EXISTING NOTARIZATIONS
Type of Total Principal Amount of
Agreement Borrower/Guarantor Maturity date Indebtedness notarised as
of March 31, 2004
- ---------------------------------------------------------------------------------------------------------
Bilateral lines Cemex Espana S.A./n.a. Between Jan. 2005 EUR 51,086,029 (1)
and Dec. 2005
Deferred purchase price Aricemex S.A./n.a. July, 2005 EUR 961,619
5-year term loan Cemex Colombia S.A. April 22nd, 2004 US$ 37,172,250 (2)
(formerly known as
Cementos Diamante)/
Cemex Espana S.A.
(1) Corresponds to the total committed amount under the facilities.
Amount drawn as of 03.31.04: EUR 8,110,266
(2) Approximately $20 million of principal is due and payable on April
22, 2004; Cemex intends to repay the remaining principal amount in
full at that time
EXHIBIT 1(a)
[FORM OF TRANCHE 1 NOTE]
CEMEX ESPANA FINANCE LLC
1.79% SENIOR NOTE, SERIES 2004, TRANCHE 1, DUE APRIL 15, 2010
No.[_____] [Date]
(Y)[_____________] ________________
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
[_______________________________] JAPANESE YEN ((Y)____________) on April 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 1.79% per annum from
the date hereof, payable semiannually, on the 15th day of April and October in
each year, commencing with the April 15th or October 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) 3.79% 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 Japanese yen 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 April 15,
2004 (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
1.99% SENIOR NOTE, SERIES 2004, TRANCHE 2, DUE APRIL 15, 2011
No.[_____] [Date]
(Y)[_____________] ________________
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
[_______________________________] JAPANESE YEN ((Y)____________) on April 15,
2011, 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 1.99% per annum from
the date hereof, payable semiannually, on the 15th day of April and October in
each year, commencing with the April 15th or October 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) 3.99% 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 Japanese yen 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 April 15,
2004 (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
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL NEW YORK
COUNSEL TO THE COMPANY
EXHIBIT 4.4(c)
FORM OF OPINION OF SPECIAL
NETHERLANDS COUNSEL
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