EXHIBIT 4.16
C L I F F O R D CONFORMED COPY
C H A N C E
US$1,250,000,000
FACILITIES AGREEMENT
dated 24 September 2004
for
NEW SUNWARD HOLDING B.V.
as Borrower
CEMEX, S.A. DE C.V., CEMEX MEXICO, S.A. DE C.V. AND
EMPRESAS TOLTECA DE MEXICO, S.A. DE C.V.
as Guarantors
arranged by
CITIGROUP GLOBAL MARKETS LIMITED
and
GOLDMAN SACHS INTERNATIONAL
with
CITIBANK INTERNATIONAL PLC
acting as Agent
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TERM AND REVOLVING FACILITIES AGREEMENT
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CONTENTS
Clause Page
1. Definitions And Interpretation........................................4
2. The Facilities.......................................................30
3. Purpose..............................................................30
4. Conditions Of Utilisation............................................31
5. Utilisation..........................................................34
6. Optional Currencies..................................................35
7. Repayment............................................................36
8. Conversion Of Facility B1............................................36
9. Prepayment And Cancellation..........................................37
10. Interest.............................................................41
11. Interest Periods.....................................................42
12. Changes To The Calculation Of Interest...............................43
13. Fees.................................................................44
14. Tax Gross Up And Indemnities........................................46
15. Increased Costs......................................................48
16. Other Indemnities....................................................49
17. Mitigation By The Lenders............................................50
18. Costs And Expenses...................................................51
19. Guarantee And Indemnity..............................................52
20. Representations......................................................55
21. Information Undertakings.............................................60
22. General Undertakings.................................................64
23. Events Of Default....................................................73
24. Changes To The Lenders...............................................78
25. Changes To The Obligors..............................................82
26. Role Of The Agent And The Arranger...................................84
27. Conduct Of Business By The Finance Parties...........................89
28. Sharing Among The Finance Parties....................................89
29. Payment Mechanics....................................................92
30. Set-Off..............................................................94
31. Notices..............................................................94
32. Calculations And Certificates........................................98
33. Partial Invalidity...................................................99
34. Remedies And Waivers.................................................99
35. Amendments And Waivers...............................................99
36. Counterparts........................................................100
37. Governing Law.......................................................101
38. Enforcement.........................................................101
SCHEDULE 1 THE ORIGINAL PARTIES............................................102
Part I The Original Obligors........................................102
Part II The Original Lenders........................................104
SCHEDULE 2 CONDITIONS PRECEDENT............................................105
Part I Conditions Precedent To Initial Utilisation..................105
Part II Conditions Precedent Required To Be Delivered By An
Additional Guarantor........................................107
SCHEDULE 3 REQUESTS 109
Part I Utilisation Request..........................................109
Part II Selection Notice............................................111
SCHEDULE 4 MANDATORY COST FORMULAE.........................................112
SCHEDULE 5 FORM OF TRANSFER CERTIFICATE....................................115
SCHEDULE 6 FORM OF COMPLIANCE CERTIFICATE..................................117
SCHEDULE 7 FORM OF LMA CONFIDENTIALITY UNDERTAKING.........................118
SCHEDULE 8 TIMETABLE 124
SCHEDULE 9 FORM OF ACCESSION LETTER........................................125
SCHEDULE 10 PERMITTED LIENS................................................126
SCHEDULE 11 FORM OF PROMISSORY NOTE........................................127
Part I Form of Tranche B1 Note......................................127
Part II Form of Tranche B2 Note.....................................134
THIS TERM AND REVOLVING FACILITIES AGREEMENT is dated 24 September 2004 and
made between:
(1) NEW SUNWARD HOLDING B.V. (the "Borrower");
(2) THE COMPANIES listed in Part IB of Schedule 1 (The Obligors) as
original guarantors (the " Original Guarantors");
(3) CITIGROUP GLOBAL MARKETS LIMITED and GOLDMAN SACHS INTERNATIONAL as
mandated lead arrangers and joint bookrunners (whether acting
individually or together the "Arranger");
(4) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The
Original Parties) as lenders (the "Original Lenders"); and
(5) CITIBANK INTERNATIONAL PLC as agent of the other Finance Parties (the
"Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Accession Letter" means a document substantially in the form set out
in Schedule 9 (Form of Accession Letter).
"Acquired Subsidiary" means any Subsidiary acquired by any Obligor or
by any Subsidiary of any Obligor after the date hereof in an
Acquisition, and any Subsidiaries of such Acquired Subsidiary on the
date of such Acquisition.
"Acquiring Subsidiary" means any Subsidiary formed by any Obligor or
by a Subsidiary of any Obligor solely for the purpose of participating
as the acquiring party in any Acquisition, and any Subsidiaries of
such Acquiring Subsidiary acquired in such Acquisition.
"Acquisition" means any merger, consolidation, acquisition or lease of
assets, acquisition of securities or business combination or
acquisition, or any two or more of such transactions, if upon the
completion of such transaction or transactions, any Obligor or any
Subsidiary thereof has acquired an interest in any Person who is
deemed to be a Subsidiary under this Agreement and was not a
Subsidiary prior thereto.
"Additional Cost Rate" has the meaning given to it in Schedule 4
(Mandatory Cost Formulae).
"Additional Guarantor" means a company which becomes an Additional
Guarantor in accordance with Clause 25 (Changes to the Obligors).
"Adjusted Consolidated Net Tangible Assets" means, with respect to any
Person, the total assets of such Person and its Subsidiaries (less
applicable depreciation, amortisation and other valuation reserves),
including any write-ups or restatements required under Applicable GAAP
(other than with respect to items referred to in clause (b) below),
minus (a) all current liabilities of such Person and its Subsidiaries
(excluding the current portion of long-term debt) and (b) all
goodwill, trade names, trademarks, licenses, concessions, patents,
un-amortised debt discount and expense and other intangibles, all as
determined on a consolidated basis in accordance with Applicable GAAP.
"Affiliate" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"Agent's Spot Rate of Exchange" means the Agent's spot rate of
exchange for the purchase of the relevant currency with the Base
Currency in the London foreign exchange market as of 11:00 a.m. on a
particular day.
"Applicable GAAP" means, with respect to any Person, Mexican GAAP or
other generally accepted accounting principles required to be applied
to such Person in the jurisdiction of its incorporation or
organisation and used in preparing such Person's financial statements.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"Authorised Signatory" means, in relation to any Obligor, any person
who is duly authorised and in respect of whom the Agent has received a
certificate signed by a director or another Authorised Signatory of
such Obligor setting out the name and signature of such person and
confirming such person's authority to act.
"Availability Period" means the period from and including the date of
this Agreement to and including:
(a) the Termination Date in respect of Facility B1; and
(b) the day which is 180 days after the date of the posting of the
first Offer Document, in the case of Facility B2.
"Available Commitment" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) the Base Currency Amount of its participation in any
outstanding Utilisations under that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency
Amount of its participation in any other Utilisations that are
due to be made under that Facility on or before the proposed
Utilisation Date,
other than, in relation to any proposed Utilisation under Facility B1
only, any participation in Facility B1 Loans which are due to be
repaid or prepaid on or before the proposed Utilisation Date.
"Available Facility" means, in relation to a Facility, the aggregate
for the time being of each Lender's Available Commitment in respect of
that Facility.
"Base Currency" means US dollars.
"Base Currency Amount" means in relation to a Utilisation, the amount
specified in the Utilisation Request delivered by the Borrower for
that Utilisation (or, if the amount requested is not denominated in
the Base Currency, that amount converted into the Base Currency at the
Agent's Spot Rate of Exchange on the date which is three Business Days
before the Utilisation Date) as adjusted to reflect any repayment,
prepayment, consolidation or division of a Utilisation.
"Bidco" means Cemex UK Limited, a special purpose subsidiary of the
Borrower incorporated in England and Wales with company number
05196131 and having its registered office at 2 Lambs Passage, London
EC1Y 8BB.
"Board" means the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Break Costs" means the amount (if any) by which:
(a) the interest (excluding the applicable Margin) which a Lender
should have received for the period from the date of receipt
of all or any part of its participation in a Loan or Unpaid
Sum to the last day of the current Interest Period in respect
of that Loan or Unpaid Sum, had the principal amount or Unpaid
Sum received been paid on the last day of that Interest
Period;
exceeds:
(b) the amount which that Lender would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the Relevant
Interbank Market for a period starting on the day of receipt
or recovery if a Business Day and if received or recovered
before 2 pm London time (or, if not, on the Business Day
following receipt or recovery) and ending on the last day of
the current Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and Amsterdam and:
(a) (in relation to any date for payment or lending or purchase
of, or the determination of an interest rate or rate of
exchange in relation to, a currency other than euro) the
principal financial centre of the country of that currency; or
(b) (in relation to any date for payment or lending or purchase
of, or the determination of an interest rate or rate of
exchange in relation to, euro) any TARGET Day.
"Capital Lease Obligations" means, as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet
of such Person under Applicable GAAP and, for the purposes of this
Agreement, the amount of such obligations at any time shall be the
capitalised amount thereof at such time determined in accordance with
Applicable GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Cemex Facilities Agreements" means the Cemex Facility A Agreements
and the Cemex Facility C Agreement.
"Cemex Facility A Agreements" means both, the US$500,000,000 A1 term
loan facility agreement and the Mexican Pesos equivalent of
US$250,000,000 A2 term loan facility agreement, each made between
(amongst others) Cemex Parent and Citigroup Global Markets Limited and
Banco Nacional de Mexico, S.A., Integrante del Grupo Financiero
Banamex on or about the date hereof.
"Cemex Facility C Agreement" means the US$3,800,000,000 multicurrency
term and revolving credit facility made between (amongst others) Cemex
Spain and Citigroup Global Markets Limited and Goldman Sachs
International on or about the date hereof.
"Cemex Parent" means CEMEX, S.A. de C.V., a company (sociedad anonima
de capital variable) incorporated in Mexico.
"Cemex Spain" means Cemex Espana, S.A., a company (sociedad anonima)
incorporated under the laws of Spain, No. Hoja-Registro Mercantil,
Madrid: M -156542, NIF A46/004214.
"Certain Funds Period" bears the meaning given to it in the Cemex
Facility C Agreement.
"Clean-Up Date" means the date falling 180 days after the
Unconditional Date.
"Clean-Up Period" means the period commencing on the Unconditional
Date and ending on the Clean-Up Date.
"Code" means the City Code on Takeovers and Mergers.
"Commitment" means a Facility B1 Commitment and/or Facility B2
Commitment.
"Compliance Certificate" means a certificate substantially in the form
set out in Schedule 6 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule
7 (Form of LMA Confidentiality Undertaking) or in any other form
agreed between the Borrower and the Agent.
"Consolidated EBITDA" means, for any period, the sum for Cemex Parent
and its Subsidiaries, determined on a consolidated basis of (a)
operating income (utilidad de operacion), (b) cash interest income and
(c) depreciation and amortisation expense (to the extent deducted from
operating income), in each case determined in accordance with Mexican
GAAP consistently applied for such period. For the purposes of
calculating Consolidated EBITDA for any period of four consecutive
fiscal quarters (each, a "Reference Period") in connection with any
determination of Consolidated Leverage Ratio (but not Consolidated
Fixed Charge Coverage Ratio), (i) if at any time during such Reference
Period Cemex Parent or any of its Subsidiaries shall have made any
Material Disposition, Consolidated EBITDA for such Reference Period
shall be reduced by an amount equal to the Consolidated EBITDA (if
positive) attributable to the property that is the subject of such
Material Disposition for such Reference Period (but when the Material
Disposition is by way of a lease, income received by any member of the
Group under such lease shall be included in Consolidated EBITDA) and
(ii) if at any time during such Reference Period Cemex Parent or any
of its Subsidiaries shall have made any Material Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated
after giving pro forma effect thereto (including the incurrence or
assumption of any Debt) as if such Material Acquisition had occurred
on the first day of such Reference Period. Additionally, if since the
beginning of such Reference Period any Person that subsequently became
a Subsidiary of Cemex Parent or was merged or consolidated with Cemex
Parent or any of its Subsidiaries as a result of a Material
Acquisition occurring during such Reference Period shall have made any
Disposition or Acquisition of property that would have required an
adjustment pursuant to clause (i) or (ii) above if made by Cemex
Parent or any of its Subsidiaries during such Reference Period,
Consolidated EBITDA for such period shall be calculated after giving
pro forma effect thereto as if such Disposition or Acquisition had
occurred on the first day of such Reference Period.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Fixed Charges for such period.
"Consolidated Fixed Charges" means, for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period, (b)
mandatory dividend payments during such period in respect of preferred
Capital Stock of Cemex Parent or any of its Subsidiaries, and (c) to
the extent not included in (a) above, payments during such period in
respect of the financing costs of financial derivatives in the form of
equity swaps.
"Consolidated Interest Expense" means, for any period, the total gross
interest expense of Cemex Parent and its consolidated Subsidiaries
allocable to such period in accordance with Mexican GAAP.
"Consolidated Leverage Ratio" means, at any time during any fiscal
quarter, the ratio of (a) Consolidated Net Debt at such time to (b)
Consolidated EBITDA for the four consecutive fiscal quarters
immediately preceding such fiscal quarter.
"Consolidated Net Debt" means, at any date, the sum (without
duplication) of (a) the aggregate amount of all Debt of Cemex Parent
and its Subsidiaries at such date, plus (b) to the extent not included
in Debt, the aggregate amount of all derivative financing in the form
of equity swaps outstanding at such date (save to the extent cash
collateralised), plus (c) to the extent not included in Debt, all
payment obligations of Cemex Parent or any of its Subsidiaries under
the 9.66% Puttable Capital Securities issued by CEMEX International
Capital LLC on 14 May 1998 or under any similar instrument, minus (d)
all Temporary Investments of Cemex Parent and its Subsidiaries at such
date.
"Contractual Obligation" as to any Person, any provision of any
security issued or guaranteed by such Person or of any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Person is a party or by which it or any of
its property is bound.
"Conversion Request" has the meaning given to it in Clause 8.1.
(Request for Conversion)
"Costs and Expenses Letter" means the costs and expenses letter dated
on or about the date of this Agreement between the Arranger, the
Borrower, Cemex Spain and Cemex Parent.
"CTW" means Cemex Trademarks Ltd., a commercial company organised and
existing under the laws of Switzerland.
"Debt" means, as to any Person at any time, without duplication:
(a) all obligations of such Person for borrowed money;
(b) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(c) all obligations of such Person for the deferred purchase price
of property or services, except trade accounts payable arising
in the ordinary course of business;
(d) all Capital Lease Obligations of such Person;
(e) all Debt of others secured by a Lien on any asset or property
of such Person, up to the value of such asset, as recorded in
such Person's most recent balance sheet;
(f) all obligations of such Person with respect to product
invoices incurred in connection with export financing;
(g) all obligations of such Person under repurchase agreements for
stock issued by such Person or another Person; and
(h) all obligations, contingent or otherwise, of such Person
directly or indirectly guaranteeing obligations of any other
Person of the kind referred to in paragraphs (a) to (g) above.
"Default" means an Event of Default or any event or circumstance
specified in Clause 23 (Events of Default) which would (with the
expiry of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"Derivatives Obligations" means, as to any Person, all obligations of
such Person in respect of any financial derivatives, including without
limitation any rate swap transaction, basis swap, forward rate
transaction, equity or equity index swap, equity or equity index
option, equity or equity index forward purchase transaction, equity
option, bond option, interest rate option, foreign exchange
transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction
(including any option with respect to any of the foregoing
transactions) or any combination of the foregoing transactions, and
all obligations, contingent or otherwise, of such Person directly or
indirectly guaranteeing obligations of any other Person of the kind
referred to above.
"Disposition" means, with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition thereof. The terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Dutch Banking Act" means the Dutch Act of the Supervision of Credit
System of 1992 (Wet toezicht kredietwezen 1992), as amended or
re-enacted from time to time.
"Dutch Central Bank" means the central bank of The Netherlands (De
Nederlandsche Bank).
"Dutch Exemption Regulation" means the Exemption Regulation of the
Dutch Minister of Finance of 26 June 2002 (Vrijstellingsregeling Wtk
1992), as amended or re-enacted from time to time.
"Dutch Policy Guidelines" means the Dutch Central Bank's policy
guidelines of 10 July 2002 issued in relation to the Dutch Exemption
Regulation (beleidsregel kernbegrippen markttoetreding en handhaving
Wtk 1992), as amended or restated from time to time.
"Environmental Laws" means any and all foreign, federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances,
technical standards (norma tecnica), codes, decrees, requirements of
any Governmental Authority or other Requirements of Law (including
common law) regulating, relating to or imposing liability or standards
of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of
that Loan) the arithmetic mean of the rates (rounded upwards
to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the
European interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in euro for a period comparable to the Interest Period of the
relevant Loan.
"Event of Default" means any event or circumstance specified as such
in Clause 23 (Events of Default).
"Exchange Act" means the U.S. Securities Exchange Act of 1943, as
amended.
"Facility" means Facility B1 or Facility B2.
"Facility B1" means the 364-day multicurrency revolving loan facility
with a term-out option made available under this Agreement as
described in paragraph (a) of Clause 2.1 (The Facilities).
"Facility B1 Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility B1
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility B1 Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility B1 Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility B1 Loan" means a loan made or to be made under Facility B1
or the principal amount outstanding for the time being of that loan.
"Facility B1 Note" means a promissory note of the Borrower
substantially in the form of Schedule 12 (Form of Promissory Note)
relating to amounts to be drawn under Facility B1 and reflecting the
terms of this Agreement.
"Facility B1 Repayment Date" means the day falling 364 days after the
date of this Agreement.
"Facility B2" means the multicurrency term loan facility made
available under this Agreement as described in paragraph (b) of Clause
2.1 (The Facilities).
"Facility B2 Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility B2
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility B2 Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility B2 Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility B2 Loan" means a loan made or to be made under Facility B2
or the principal amount outstanding for the time being of that loan.
"Facility B2 Note" means a promissory note of the Borrower
substantially in the form of Schedule 12 (Form of Promissory Note)
relating to amounts to be drawn under Facility B2 and reflecting the
terms of this Agreement.
"Facility B2 Repayment Date" means the day falling 36 Months after the
date of this Agreement.
"Facility Office" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"FAS 140" means Financial Accounting Standards Board Statement No. 140
or any Statement replacing the same, in each case as amended, modified
or supplemented from time to time.
"Final B1 Termination Date" means, in relation to Facility B1, the
date which is 6 Months after the Termination Date relating thereto.
"Finance Document" means this Agreement, any Note, any Accession
Letter, the Syndication and Fees Letter, the Sub Underwriter Fee
Letter, the Costs and Expenses Letter and any other document
designated as a "Finance Document" by the Agent and the Borrower.
"Finance Party" means the Agent, the Arranger or a Lender.
"First Utilisation Date" means the date on which the first Utilisation
is made under this Agreement.
"Funds Flow Statement" means the funds flow statement in agreed form
delivered to the Agent (as amended from time to time prior to the
Unconditional Date provided that such amendments:
(a) have been approved by the Lenders; or
(b) do not affect the interests of the Lenders in relation to the
Facilities).
"Governmental Authority" means any foreign or domestic branch of power
or government or any state, department or other political subdivision
thereof, or any foreign or domestic governmental body, agency,
authority (including any central bank or taxing authority), any entity
or instrumentality (including any court or tribunal) exercising, or
asserting jurisdiction to exercise, executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Group" means the Borrower and each of its Subsidiaries for the time
being.
"Guarantors" means the Original Guarantors and any Additional
Guarantor other than any such Original Guarantor or Additional
Guarantor which has ceased to be a Guarantor pursuant to Clause 25.3
(Resignation of Guarantor) and has not subsequently become an
Additional Guarantor pursuant to Clause 25.2 (Additional Guarantors)
and "Guarantor" means any of them.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Information Memorandum" means the document in the form approved by
the Borrower (and as updated from time to time with the approval of
the Borrower) concerning Cemex Parent, the Group and the Target Group
which, at the request of the Borrower and on its behalf is to be
prepared in relation to the transaction contemplated by this
Agreement, approved by the Borrower and distributed by the Arranger in
connection with the syndication of the Facilities.
"Intellectual Property" means the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under Mexican, multinational or foreign laws or otherwise,
including copyrights, copyright licences, patents, patent licences,
trademarks, trademark licences, technology, know-how and processes,
trade secrets, any applications associated with the foregoing, and all
rights to sue at law or in equity for any infringement or other
impairment thereof, including the right to receive all proceeds and
damages therefrom.
"Interest Period" means, in relation to a Loan, each period determined
in accordance with Clause 11 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 10.3
(Default interest).
"International Accounting Standards" means the accounting standards
approved by the International Accounting Standards Board from time to
time.
"Lender" means:
(a) any Original Lender; and
(b) any bank, financial institution, securitisation trust or fund
or other entity which has become a Party in accordance with
Clause 24 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at
its request quoted by the Reference Banks to leading banks in
the London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to
the Interest Period for that Loan. "Lien" means with respect to any
asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, or any other type of preferential arrangement
of any kind whatsoever that has the practical effect of creating a
Lien, in respect of such asset. Any member of the Group shall be
deemed to own, subject to a Lien, any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"LMA" means the Loan Market Association.
"Loan" means a Facility B1 Loan or a Facility B2 Loan.
"Loan Notes" means the loan notes (if any) issued to the shareholders
of the Target Shares pursuant to the Offer.
"Major Breach" means in respect of the Borrower and its Subsidiaries
(including Bidco) only and not, for the avoidance of doubt, relating
to any member of the Target Group (including any failure to procure
its compliance), an outstanding breach of any paragraph of Clause 3.1
(Purpose) arising from the failure of the Borrower or Bidco to apply
the proceeds of a Utilisation for the purposes for which it was
advanced, Clauses 22.10 (Pari passu ranking), 22.13 (Liens) (other
than any breach in respect of an attachment or judgment lien), 22.14
(Consolidation and mergers), 22.15 (Sales of assets, etc.), 22.16
(Restricted Payments), 22.22 (Ownership of Cemex Spain), 22.23
(Ownership of the Borrower) and 22.24 (Ownership of Trademark
Companies).
"Major Default" means (a) any outstanding Event of Default in respect
of the Borrower and its Subsidiaries (including Bidco) only and not,
for the avoidance of doubt, relating to any member of the Target Group
(including any failure to procure its compliance) under any of
paragraphs (a), (b), (c) (but only in relation to a Major
Representation), (d) (but only in relation to a Major Breach), (g),
(h), (k) and (l); or (b) any failure by the Borrower to comply with
the requirements of Clause 4.1 (Initial Conditions Precedent) other
than paragraphs 2(a), 2(b) and 2(c) of Part I of Schedule 2
(Conditions Precedent).
"Major Representation" means in respect of the Borrower and its
Subsidiaries (including Bidco) only and not, for the avoidance of
doubt, relating to any member of the Target Group (including any
failure to procure its compliance), any of the representations
contained in paragraph (a) of Clause 20.1 (Status), Clause 20.2
(Binding Obligations) and Clause 20.3 (Non-conflict with other
obligations) (inclusive) where, in each case, breach would lead to a
Material Adverse Effect.
"Majority Lenders" means:
(a) if there are no Loans then outstanding, a Lender or Lenders
whose Commitments aggregate more than 51% of the Total
Commitments (or, if the Total Commitments have been reduced to
zero, aggregated more than 51% of the Total Commitments
immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose undrawn
Commitments and participations in the Loans then outstanding
aggregate more than 51% of all the undrawn Commitments and
Loans then outstanding.
"Mandatory Cost" means the percentage rate per annum calculated in
accordance with Schedule 4 (Mandatory Cost Formulae).
"Margin" means:
(a) subject to paragraph (c) below, in relation to any Loan the
percentage rate per annum determined pursuant to the table set
out below:
------------------------- ---------------
Facility Margin % p.a.
------------------------- ---------------
Facility B1 0.825
------------------------- ---------------
Facility B2 0.925
------------------------- ---------------
(b) in relation to any Unpaid Sum the percentage rate per annum
specified above applicable to the Facility in relation to
which the Unpaid Sum arises, or if such Unpaid Sum does not
arise in relation to a particular Facility, the rate per annum
specified above applicable to the Facility to which the Agent
reasonably determines the Unpaid Sum most closely relates, or
if none, the highest rate per annum specified above,
but if at any time after the First Utilisation Date following the
Unconditional Date:
(i) no Default has occurred and is continuing; and
(ii) the Consolidated Leverage Ratio in respect of the most
recently completed Relevant Period is within a range
set out below,
then the Margin for each Loan under each Facility (and for any Unpaid
Sum related to that Facility) will be the percentage rate per annum
set out below opposite that range:
--------------------------------------------- ----------------------------------------
Consolidated Leverage Ratio Margin
% p.a.
--------------------------------------------- ------------------ ---------------------
Facility B1 Facility B2
--------------------------------------------- ------------------ ---------------------
Greater than or equal to 3.3:1 1.025 1.150
--------------------------------------------- ------------------ ---------------------
Less than 3.3:1 but greater than or equal 0.825 0.925
to 3.0:1
--------------------------------------------- ------------------ ---------------------
Less than 3.0:1 but greater than or equal 0.725 0.825
to 2.7:1
--------------------------------------------- ------------------ ---------------------
Less than 2.7:1 but greater than or equal to 0.625 0.725
2.4:1
--------------------------------------------- ------------------ ---------------------
Less than 2.4:1 0.525 0.625
--------------------------------------------- ------------------ ---------------------
However any increase or decrease in the Margin shall take effect on
the date (the "reset date") which is five Business Days after receipt
by the Agent of the Compliance Certificate for that Relevant Period
pursuant to Clause 21.2 (Compliance Certificate) and in the case of a
then current Interest Period will apply to the whole of such Interest
Period unless any payments of interest have already been made in which
case any adjustments to the Margin will apply only from the date of
such payment.
"Material Acquisition" means any (a) acquisition of property or series
of related acquisitions of property that constitutes assets comprising
all or substantially all of an operating unit, division or line of
business or (b) acquisition of or other investment in the Capital
Stock of any Subsidiary of Cemex Parent or any Person which becomes a
Subsidiary of Cemex Parent or is merged or consolidated with any
member of the Group, in each case which involves the payment of
aggregate consideration by any one or more members of the Group in
excess of US$25,000,000 (or the equivalent thereof in other
currencies).
"Material Adverse Effect" means a material adverse effect on:
(a) the business, condition (financial or otherwise), or
operations of the Group taken as a whole;
(b) the rights and remedies of any Finance Party under the Finance
Documents; or
(c) the ability of any Obligor to perform its obligations under
Finance Documents.
"Material Disposition" means any Disposition of property or series of
related Dispositions of property that yields aggregate gross proceeds
to any one or more members of the Group in excess of US$25,000,000 (or
the equivalent thereof in other currencies).
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law, including
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Material Subsidiary" means, at any date:
(a) Cemex Spain, each Trademark Company and each Obligor that is a
Subsidiary of Cemex Parent; and
(b) each other Subsidiary of any Obligor (if any) (i) the assets
of which, together with those of its Subsidiaries, on a
consolidated basis, without duplication, constitute five per
cent. or more of the consolidated assets of Cemex Parent and
its Subsidiaries as of the end of the then most recently ended
fiscal quarter or (ii) the operating profit of which, together
with that of its Subsidiaries, on a consolidated basis without
duplication, constitutes five per cent. or more of the
consolidated operating profits of Cemex Parent and its
Subsidiaries for the then most recently ended fiscal quarter.
"Mexican Bank" means any bank incorporated under the laws of Mexico
and duly authorised by the Ministry of Finance and Public Credit
(Secretaria de Hacienda y Credito Publico) to carry out the business
of banking in Mexico under the Credit Institutions Law (Ley de
Instituciones de Credito).
"Mexican GAAP" means generally accepted accounting principles in
Mexico as in effect from time to time, except that for purposes of
Clause 22.12 (Financial condition covenants), Mexican GAAP shall be
determined on the basis of such principles in effect as of the date
of, and applied in the preparation of, the audited financial
statements of Cemex Parent and its consolidated Subsidiaries as of and
for the year ended 31 December 2003. In the event that any change in
Mexican GAAP shall occur and such change results in a change in the
method of calculation of financial covenants, standards or terms in
this Agreement, then the Borrower and the Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as
to equitably reflect such change in Mexican GAAP with the desired
result that the criteria for evaluating the financial condition of
Cemex Parent and its consolidated Subsidiaries shall be the same after
such change as if such change had not been made. Until such time an
amendment shall have been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be
calculated or construed as if such change in Mexican GAAP had not
occurred.
"Mexico" means the United Mexican States.
"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar
month, except that:
(a) if the numerically corresponding day is not a Business Day,
that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one,
or if there is not, on the immediately preceding Business Day;
and
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"Monthly" shall be construed accordingly.
"Moody's" means Moody's Investors Service Inc..
"New Lender" has the meaning set out in Clause 24.1 (Assignments and
transfers by Lenders).
"Note" means a Facility B1 Note or a Facility B2 Note as the case may
be.
"Obligations" means:
(a) as to the Borrower, all of the Debt, obligations and
liabilities of the Borrower to the Lenders and the Agent now
or in the future existing under or in connection with the
Finance Documents, whether direct or indirect, absolute or
contingent, due or to become due; and
(b) as to each Guarantor, all the Debt, obligations and
liabilities of such Guarantor to the Lenders and the Agent now
or in the future existing under or in connection with this
Agreement, whether direct or indirect, absolute or contingent,
due or to become due.
"Obligors" means the Borrower and the Guarantors and "Obligor" means
any of them.
"Off-Balance-Sheet Transaction" means any financing transaction of any
Person not reflected as Debt on the balance sheet of such Person, but
being structured in a way that may result in payment obligations by
such Person.
"Offer" means the offer proposed to be made by Bidco, substantially on
the terms set out in the Press Release, to acquire all of the Target
Shares not already owned by Bidco (whether by way of offer to purchase
or scheme of arrangement), as such Offer may from time to time be
amended, added to, revised, renewed or waived as permitted in
accordance with the terms of this Agreement.
"Offer Document" means the offer (or scheme) document delivered or to
be delivered to the shareholders of the Target in relation to the
Offer.
"Optional Currency" means a currency (other than the Base Currency)
which complies with the conditions set out in Clause 4.4 (Conditions
relating to Optional Currencies).
"Original Financial Statements" means:
(a) in relation to the Borrower, its audited unconsolidated
financial statements for its financial year ended 31 December
2003; and
(b) in relation to each Guarantor, its respective audited
unconsolidated (and, to the extent available, its audited
consolidated) financial statements for its financial year
ended 31 December 2003; and
(c) in relation to any other Obligor, its most recent audited
financial statements prior to its becoming a Party.
"Participating Member State" means any member state of the European
Union that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Union relating to
Economic and Monetary Union.
"Party" means a party to this Agreement.
"Permitted Lien" has the meaning given to that term in Clause 22.13
(Liens).
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or other business entity, or
Governmental Authority, whether or not having a separate legal
personality.
"Press Release" means a press announcement to be released by Bidco
announcing the terms of the Offer.
"Process Agent" means Bidco.
"Professional Market Party" means a professional market party
(professionele marktpartij) as defined from time to time under the
Dutch Exemption Regulation. As of the date hereof, only the following
are Professional Market Parties:
(a) banks, insurance companies, securities firms, investment
institutions and pension funds that are (i) supervised or
licensed under Dutch law or (ii) established and acting under
supervision in a European Union member state (other than The
Netherlands), Hungary, Monaco, Poland, Puerto Rico, Saudi
Arabia, Slovakia, Czech Republic, Turkey, South Korea, the
United States, Japan, Australia, Canada, Mexico, New Zealand
or Switzerland;
(b) investment institutions that offer their participation rights
exclusively to professional market parties and are not
required to be supervised or licensed under Dutch law;
(c) the State of The Netherlands, the Dutch Central Bank, a
foreign central government body, a foreign central bank, Dutch
regional and local governments and comparable foreign
de-centralised government bodies, international treaty
organisations and supranational organisations;
(d) enterprises or entities with total assets of at least
(euro)500,000,000 (or the equivalent thereof in other
currencies) as per the balance sheet of such entity as of the
year-end preceding the date of the making of, or acceptance of
an assignment of (as the case may be), any Loan hereunder;
(e) enterprises, entities or individuals with net assets (eigen
vermogen) within the meaning of the Dutch Exemption Regulation
of at least (euro)10,000,000 (or the equivalent thereof in
other currencies) as of the year-end preceding the date of the
making of, or acceptance of an assignment of (as the case may
be), any Loan hereunder and who or which have been active in
the financial markets on average twice a month over a period
of at least two consecutive years preceding such date;
(f) subsidiaries of the entities referred to under paragraph (a)
above, provided that such subsidiaries are subject to
supervision; and
(g) an enterprise or institution that has a rating from or that
issues securities having a rating from a rating agency
recognised for such purposes by the Dutch Central Bank.
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by any member of the Group
pursuant to which such member of the Group may sell, convey or
otherwise transfer to a Special Purpose Vehicle (in the case of a
transfer by Cemex Parent or any other Seller) and any other Person (in
the case of a transfer by a Special Purpose Vehicle), or may grant a
security interest in, any Receivables Program Assets (whether now
existing or arising in the future); provided that:
(a) no portion of the Debt or any other obligations (contingent or
otherwise) of a Special Purpose Vehicle (i) is guaranteed by
Cemex Parent or any other Seller or (ii) is recourse to or
obligates Cemex Parent or any other member of the Group in any
way such that the requirements for off balance sheet treatment
under FAS 140 are not satisfied; and
(b) Cemex Parent and the other Sellers do not have any obligation
to maintain or preserve the financial condition of a Special
Purpose Vehicle or cause such entity to achieve certain levels
of operating results.
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is sterling) the first day of that period;
(b) (if the currency is euro) two TARGET Days before the first day
of that period; or
(c) (for any other currency) two Business Days before the first
day of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be given
by leading banks in the Relevant Interbank Market on more than one
day, the Quotation Day will be the last of those days).
"Rating" means at any time the solicited long term credit rating or
the senior implied rating of Cemex Parent or an issue of securities of
or guaranteed by Cemex Parent, where the rating is based primarily on
the senior unsecured credit risk of Cemex Parent and/or, in the case
of the senior implied rating, on the characteristics of any particular
issue, assigned by a Rating Agency.
"Rating Agency" means S&P or Moody's.
"Receivables" means all rights of Cemex Parent or any other Seller to
payments (whether constituting accounts, chattel paper, instruments,
general intangibles or otherwise, and including the right to payment
of any interest or finance charges), which rights are identified in
the accounting records of Cemex Parent or such Seller as accounts
receivable.
"Receivables Documents" means:
(a) a receivables purchase agreement, pooling and servicing
agreement, credit agreement, agreement to acquired undivided
interests in or other agreement to transfer, or create a
security interest in, Receivables Program Assets, in each case
as amended, modified, supplemented or restated and in effect
from time to time entered into by Cemex Parent, another Seller
and/or a Special Purpose Vehicle, and
(b) each other instrument, agreement and other document entered
into by Cemex Parent, any other Seller or a Special Purpose
Vehicle relating to the transactions contemplated by the items
referred to in clause (a) above, in each case as amended,
modified, supplemented or restated and in effect from time to
time.
"Receivables Program Assets" means:
(a) all Receivables which are described as being transferred by
Cemex Parent, another Seller or a Special Purpose Vehicle
pursuant to the Receivables Documents;
(b) all Receivables Related Assets in respect of such Receivables;
and
(c) all collections (including recoveries) and other proceeds of
the assets described in the foregoing clauses.
"Receivables Program Obligations" means:
(a) notes, trust certificates, undivided interests, partnership
interests or other interests representing the right to be paid
a specified principal amount from the Receivables Program
Assets; and
(b) related obligations of Cemex Parent, a Subsidiary of Cemex
Parent or a Special Purpose Vehicle (including, without
limitation, rights in respect of interest or yield hedging
obligations, breach of warranty or covenant claims and expense
reimbursement and indemnity provisions).
"Receivables Related Assets" means with respect to any "Receivables":
(a) any rights arising under the documentation governing or
relating to such Receivables (including rights in respect of
Liens securing such Receivables);
(b) any proceeds of such Receivables; and
(c) other assets which are customarily transferred or in respect
of which security interests are customarily granted in
connection with asset securitization transactions involving
accounts receivable.
"Reference Banks" means, the principal London offices of Citibank
N.A., Deutsche Bank AG and Banco Bilbao Vizcaya Argentaria, S.A.or
such other banks as may be appointed by the Agent in consultation with
the Borrower.
"Regulation U" means Regulation U of the Board as in effect from time
to time.
"Relevant Interbank Market" means, in relation to euro, the European
interbank market, and, in relation to any other currency, the London
interbank market.
"Repeating Representations" means each of the representations set out
in Clauses 20.1 (Status) to Clause 20.5 (Governing law and
enforcement), Clause 20.7 (No Default), Clause 20.9 (Financial
statements/condition) and Clause 20.10 (Pari passu ranking).
"Requirement of Law" means, as to any Person, the charter, statuten
and estatutos sociales or other organisational or governing documents
of such Person and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Restricted Payments" has the meaning given to that term in Clause
22.16 (Restricted Payments).
"Restricted Subsidiary" means at any time, any of:
(a) Cemex Mexico, S.A. de C.V.;
(b) Empresas Tolteca de Mexico, S.A. de C.V.;
(c) any Trademark Company;
(d) any Material Subsidiary of Cemex Parent that, as of the date
hereof, (i) is incorporated or organised in Mexico, (ii) has
its principal place of business in Mexico or (iii) conducts a
majority of its business or holds a majority of its assets in
Mexico; and
any Subsidiary of Cemex Parent that at such time owns or operates any
portion, beyond a de minimis amount, of the assets owned or operated
as of the date hereof by the Persons described in clauses (a) through
(d).
"Rollover Loan" means one or more Facility B1 Loans:
(a) made or to be made on the same day that a maturing Facility B1
Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Facility B1 Loan;
(c) in the same currency as the maturing Facility B1 Loan (unless
it arose as a result of the operation of Clause 6.2
(Unavailability of a currency)); and
(d) made or to be made for the purpose of refinancing a maturing
Facility B1 Loan.
"S&P" means Standard & Poors Corporation.
"Scheme" means a scheme of arrangement under section 425 of the
Companies Act 1985 between the Target, Bidco and the holders of the
Target Shares (as outlined in the Press Release).
"Scheme Effective Date" means, where Bidco elects to use a Scheme to
acquire the Target Shares, the date on which an office copy of the
order of the High Court of Justice sanctioning the Scheme is filed
with the registrar of companies for registration under section 425(3)
of the Companies Act 1985.
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers' Association
Interest Settlement Rate for the relevant currency and period;
and
(b) in relation to EURIBOR, the percentage rate per annum
determined by the Banking Federation of the European Union for
the relevant period.
displayed on the appropriate page of the Reuters screen. If the agreed
page is replaced or service ceases to be available, the Agent may
specify another page or service displaying the appropriate rate after
consultation with the Borrower and the Lenders.
"SEC" means the U.S. Securities and Exchange Commission, any successor
thereto and any analogous Governmental Authority.
"Selection Notice" means a notice substantially in the form set out in
Part II of Schedule 3 (Selection Notice) given in accordance with
Clause 11 (Interest Periods) in relation to Facility B2.
"Seller" means Cemex Parent or any Subsidiary of Cemex Parent or other
Affiliate of Cemex Parent (other than a Subsidiary or Affiliate that
is a Special Purpose Vehicle) which is a party to a Receivables
Document.
"Special Purpose Vehicle" means a trust, partnership or other special
purpose Person established by any member of the Group to implement a
Qualified Receivables Transaction.
"Specified Time" means a time determined in accordance with Schedule 8
(Timetables).
"Sub Underwriter Fee Letter" means the sub underwriter fee letter
dated on or about the date of this Agreement between the Arranger, the
Borrower, Cemex Spain and Cemex Parent.
"Subsidiary" means with respect to any Person, any corporation,
partnership, joint venture, limited liability company, trust, estate
or other entity of which (or in which) more than 50% of:
(a) in the case of a corporation, the issued and outstanding
capital stock having voting power to elect a majority of the
board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power
upon the occurrence of any contingency not in the control of
such Person);
(b) in the case of a limited liability company, partnership or
joint venture, the interest in the capital or profits of such
limited liability company, partnership or joint venture; or
in the case of a trust or estate, the beneficial interest in such
trust or estate, is at the time directly or indirectly owned or
controlled by (i) such Person, (ii) such Person and one or more of its
other Subsidiaries or (iii) one or more of such Person's other
Subsidiaries. For purposes of this definition, "control" by a Person
means the power directly or indirectly to direct (x) the exercise of
voting power of, or (y) the disposition of, any interest of the kind
set forth in clauses (a) to (b) above. For purposes of determining
whether a trust formed in connection with a Qualified Receivables
Transaction is a Subsidiary, any and all notes, trust certificates,
undivided interests, partnership interests or other interests of the
type described in clause (a) of the definition of Receivables Program
Obligations shall be counted as beneficial interests in such trust.
"Syndication and Fees Letter" means the syndication and fees letter
dated on or about the date of this Agreement between the Arranger and
the Borrower detailing certain agreed arrangements and principles
regarding syndication of the Facilities and setting out certain of the
fees referred to in Clause 12 (Fees).
"Target" means RMC Group PLC, a company incorporated under the laws of
England and Wales.
"Target Group" means Target and its Subsidiaries.
"Target Shares" means the ordinary shares of 25 pence each in the
Target.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the settlement
of payments in euro.
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"Taxes Act" means the Income and Corporation Taxes Act 1988.
"Temporary Investments" means, at any date, all amounts that would, in
conformity with Mexican GAAP consistently applied, be set forth
opposite the captions "cash and cash equivalents" ("efectivo y
equivalentes de efectivo") and/or "temporary investments"
("inversiones temporales") on the consolidated balance sheet of Cemex
Parent at such date.
"Termination Amount" means at any date and with respect to any
Derivatives Obligation, the aggregate of all settlement and other
amounts (without giving effect to any set-off, counterclaim or other
reduction) which in the good faith determination of the Majority
Lenders would be payable if any default, event of default, termination
event, illegality, or other event giving rise to an early termination
or liquidation of the relevant derivative transaction were to occur in
respect of such Derivatives Obligation on such date.
"Termination Date" means:
(a) in relation to Facility B1, the day which is 364 days after
the date of this Agreement;
(b) in relation to Facility B2, the day which is 36 Months after
the date of this Agreement,
or, in each case, if such day would not be a Business Day, the first
succeeding Business Day, unless such day would fall into the next
month, in which case the immediately preceding Business Day.
"Total Commitments" means the aggregate of the Total Facility B1
Commitments, the Total Facility B2 Commitments.
"Total Facility B1 Commitments" means the aggregate of the Facility B1
Commitments, being US$500,000,000 at the date of this Agreement.
"Total Facility B2 Commitments" means the aggregate of the Facility B2
Commitments, being US$750,000,000 at the date of this Agreement.
"Total Borrowings" means, without duplication, in respect of any
Person, the amount of all Debt of such Person plus the aggregate
amount of all payment obligations, contingent or otherwise, of such
Person in respect of Off-Balance-Sheet Transactions entered into by
such Person.
"Total Net Worth of Cemex Spain" means, at any date, the shareholders'
equity of Cemex Spain and its Subsidiaries (including minority
interests) at such date, in accordance with Spanish GAAP.
"Trademark Companies" means collectively, CTW and any other Person at
any time conducting business or servicing a purpose similar to the
business and purposes of CTW as of the date hereof, with respect to
Intellectual Property owned or held under license by CTW as of the
date hereof, and any of their Successors or transferees in the event
of a merger or consolidation of any such Person or the transfer,
conveyance, sale, lease or other disposition of all or substantially
all of its properties or assets in accordance with Clause 22.14
(Consolidations and mergers).
"Transfer Certificate" means a certificate substantially in the form
set out in Schedule 5 (Form of Transfer Certificate) or any other form
agreed between the Agent and the Borrower.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer
Certificate; and (b) the date on which the Agent executes the
Transfer Certificate.
"Unconditional Date" means the date on which the Offer is declared or
becomes unconditional in all respects.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"U.S.", "US" or "United States" means the United States of America.
"Utilisation" means a utilisation of a Facility.
"Utilisation Date" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out
in Part I of Schedule 3 (Utilisation Request).
"VAT" means value added tax as provided for in the Value Added Tax Act
1994 and any other tax of a similar nature.
"Verifiable Professional Market Party" means a Professional Market
Party whose status as such may be determined on the basis of:
(a) its entry in a public register (including on-line registers
available on the internet) of the Dutch Central Bank;
(b) its rating as provided by a rating agency recognized for such
purposes by the Dutch Central Bank and as it appears from any
public register and/or written statement of such rating
agency;
(c) its balance sheet, as confirmed by an auditor's statement
showing a value of its assets as per the last day of the
preceding calendar year of at least (euro)500,000,000 (or such
other amount and/or at such other time as may be required
pursuant to the Dutch Exemption Regulation); or
(d) its entry in a public register published by a regulatory
(other than the Dutch Central Bank) of a country as referred
to in Section 1(e)(11) of the Dutch Exemption Regulation,
exercising supervision over the Professional Market Party.
1.2 Construction
(a) Unless a contrary indication appears any reference in this
Agreement to:
(i) the "Agent", the "Arranger", any "Finance Party", any
"Lender", any "Obligor" or any "Party" shall be
construed so as to include its successors in title,
permitted assigns and permitted transferees;
(ii) a document in "agreed form" is a document which is
initialled by or on behalf of the Borrower and the
Agent or the Arranger;
(iii) "assets" includes present and future properties,
revenues and rights of every description;
(iv) the "European interbank market" means the interbank
market for euro operating in Participating Member
States;
(v) a "Finance Document" or any other agreement or
instrument is a reference to that Finance Document or
other agreement or instrument as amended or novated;
(vi) "indebtedness" includes any obligation (whether
incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual
or contingent;
(vii) a "participation" of a Lender in a Loan, means the
amount of such Loan which such Lender has made or is
to make available and thereafter that part of the Loan
which is owed to such Lender;
(viii) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having
the force of law but, if not having the force of law,
with which persons who are subject thereto are
accustomed to comply) of any governmental,
intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other
authority or organisation;
(ix) the "winding-up", "dissolution", "administration" or
"reorganisation" of a company or corporation shall be
construed so as to include any equivalent or analogous
proceedings (such as, in Spain, suspension de pagos,
quiebra, concurso or any other situacion concursal
and, in The Netherlands faillissement and surseance
van betaling) under the laws and regulations of the
jurisdiction in which such company or corporation is
incorporated or any jurisdiction in which such company
or corporation carries on business including the
seeking of liquidation, winding-up, reorganisation,
bankruptcy, dissolution, administration, arrangement,
adjustment, protection or relief of debtors;
(x) a provision of law is a reference to that provision as
amended or re-enacted without material modification;
(xi) a time of day is a reference to London time; and
(xii) a reference to a clause, paragraph or schedule, unless
the context otherwise requires, is a reference to a
clause, a paragraph of or a schedule to this
Agreement.
(b) Section, Clause and Schedule headings are for ease of
reference only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) A Default (including an Event of Default) is "continuing" if
it has not been remedied or waived but, for the avoidance of
doubt, no breach of any of the financial covenants set out in
Clause 22.12 (Financial condition covenants) shall be capable
of being or be deemed to be remedied by virtue of the fact
that upon any subsequent testing of such covenants pursuant to
Clause 22.12 (Financial condition covenants), there is no
breach thereof.
(e) As used herein and in the other Finance Documents and any
certificate or other document made or delivered pursuant
hereto or thereto, (i) accounting terms relating to any member
of the Group not defined in Clause 1.1 (Definitions) and
accounting terms partly defined in Clause 1.1 (Definitions),
to the extent not defined, shall have the respective meanings
given to them under the Applicable GAAP, (ii) the words
"include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation", (iii) the word
"incur" shall be construed to mean incur, create, issue,
assume or otherwise become liable in respect of (and the words
"incurred" and "incurrence" shall have correlative meanings),
(iv) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash,
Capital Stock, securities, revenues, accounts, leasehold
interests and rights, and (v) reference to agreements or other
Contractual Obligations shall, unless otherwise specified, be
deemed to refer to such agreements or Contractual Obligations
as amended, supplemented, restated or otherwise modified form
time to time.
(f) In this Agreement, whenever pro forma effect is to be given to
any Material Acquisition or Material Disposition by any member
of the Group for purposes of including or excluding (as the
case may be) the amount of income or earnings or other amounts
relating thereto in any calculation under the definition of
Consolidated EBITDA, the pro forma calculations will be
determined in good faith by a responsible financial or
accounting officer of the Borrower; provided that such pro
forma calculations shall not include any pro forma expense or
cost reductions except to the extent calculated on a basis
consistent with Regulation S-X under the U.S. Securities Act
of 1933, as amended.
1.3 Currency Symbols and Definitions
"(pound)" and "sterling" denotes lawful currency of the United
Kingdom, "(euro)", "EUR" and "euro" means the single currency unit of
the Participating Member States and "US$", "$" and "dollars" denote
lawful currency of the United States of America.
1.4 Third party rights
(a) Unless expressly provided to the contrary in a Finance
Document a person who is not a Party has no right under the
Contracts (Rights of Third Parties) Act 1999 (the "Third
Parties Act") to enforce or enjoy the benefit of any term of
any Finance Document.
(b) Notwithstanding any term of any Finance Document, the consent
of any person who is not a Party is not required to rescind or
vary any Finance Document at any time.
SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 The Facilities
Subject to the terms of this Agreement, the Lenders make available to
the Borrower:
(a) a 364 day multicurrency revolving loan facility in an
aggregate amount equal to the Total Facility B1 Commitments;
and
(b) a three year multicurrency term loan facility in an aggregate
amount equal to the Total Facility B2 Commitments.
2.2 Finance Parties' rights and obligations
(a) The obligations of each Finance Party under the Finance
Documents are several. Failure by a Finance Party to perform
its obligations under the Finance Documents does not affect
the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations
of any other Finance Party under the Finance Documents.
(b) Except as otherwise stated in the Finance Documents, the
rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Finance Party
from an Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 Purpose
(a) The Borrower shall apply all amounts borrowed by it under each
Facility immediately in accordance with the Funds Flow
Statement and shall ensure that Bidco applies such funds
immediately upon receipt in payment for Target Shares by way
of market purchases made prior to the Unconditional Date, by
way of settlement under the Offer or by way of payment of
amounts due under the Loan Notes; and
(b) Utilisations after the Unconditional Date may only be made if
the facilities provided under the Cemex Facility A Agreements
have been fully utilised or will be fully utilised
simultaneously with such Utilisation and the conditions
precedent set out in paragraph 5 of Part 1 of Schedule 2
(Conditions Precedent) of the Cemex Facility C Agreement have
been satisfied.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 Initial conditions precedent
The Borrower may not deliver a Utilisation Request unless the Agent
has received all of the documents and other evidence listed in Part I
of Schedule 2 (Conditions Precedent to Initial Utilisation). The Agent
shall notify the Borrower and the Lenders promptly upon being so
satisfied.
4.2 Further conditions precedent
Subject to the provisions of Clause 4.3 (Certain Funds), the Lenders
will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(a) in the case of a Rollover Loan, no Event of Default is
continuing or would result from the proposed Loan and, in the
case of any other Utilisation, no Default is continuing or
would result from the proposed Utilisation;
(b) the Repeating Representations which are or which are deemed to
be made or repeated by each Obligor on such date pursuant to
Clause 20.17 (Repetition) are true in all material respects;
and
(c) save for Utilisations to fund market purchases of Target
Shares prior to the Unconditional Date, confirmation from the
facility agent under the Cemex Facility A Agreement that the
facilities provided thereunder are fully drawn or that it ahs
received irrevocable Utilisation Request thereunder such that
they will be fully drawn simultaneously with the first
Utilisation under this Agreement being made.
The Lenders will only be obliged to comply with Clause 29.9 (Change of
currency) if, on the first day of an Interest Period, no Default is
continuing or would result from the change of currency and the
Repeating Representations to be made by each Obligor are true in all
material respects.
4.3 Certain Funds
Notwithstanding any term of the Finance Documents (other than Clause
3.1 (Purpose)), each Finance Party agrees that during the Certain
Funds Period, the Finance Parties shall not:
(a) be entitled to refuse to participate in or make available any
Utilisation, whether by cancellation, rescission or
termination or similar right or remedy (whether under the
Finance Documents or under any applicable law) which it may
have in relation to a Utilisation of the Facilities or
otherwise (including by invoking any conditions set out in
Clause 4.1 (Initial Conditions Precedent) and Clause 4.2
(Further Conditions Precedent)); or
(b) make or enforce any claims they may have under the Finance
Documents if the effect of such claim or enforcement would
prevent or limit the making of any Utilisation during the
Certain Funds Period; or
(c) otherwise exercise any right of set-off or counterclaim or
similar right or remedy if to do so would prevent or limit the
making of any Utilisation; or
(d) cancel, accelerate or cause repayment or prepayment of any
Facility,
in each case unless (a) a Major Default has occurred and is continuing
or would result from the making of a Utilisation, (b) a Major
Representation is incorrect or misleading when made or deemed to be
made or (c) a Lender is entitled to do so by virtue of the provisions
of Clause 9.1 (Illegality) provided that immediately upon the expiry
of the Certain Funds Period all such rights, remedies and entitlements
shall be available to the Lenders (subject to Clause 22.2 (Clean Up
Period)) notwithstanding that they may not have been used or been
available for use during the Certain Funds Period.
4.4 Conditions relating to Optional Currencies
(a) A currency will constitute an Optional Currency in relation to
a Utilisation if:
(i) it is readily available in the amount required and
freely convertible into the Base Currency in the
Relevant Interbank Market on the Quotation Day and the
Utilisation Date for that Utilisation; and
(ii) it is sterling or euro or has been approved by the
Agent (acting on the instructions of all the Lenders)
on or prior to receipt by the Agent of the relevant
Utilisation Request for that Utilisation.
(b) The Lenders will only be obliged to comply with Clause 29.9
(Change of currency) if, on the first day of an Interest
Period, no Default is continuing or would result from the
change of currency and the Repeating Representations to be
made by each Obligor are true in all material respects.
(c) If the Agent has received a written request from the Borrower
for a currency to be approved under paragraph (a)(ii) above,
the Agent will confirm to the Borrower by the Specified Time:
(i) whether or not the Lenders have granted their
approval; and
(ii) if approval has been granted, the minimum amount (and,
if required, integral multiples) for any subsequent
Utilisation in that currency.
4.5 Maximum number of Loans
The Borrower may not deliver a Utilisation Request if as a result of
the proposed Utilisation:
(a) 10 or more Facility B1 Loans would be outstanding; or
(b) 5 or more Facility B2 Loans would be outstanding.
4.6 Promissory Notes
Each Loan made by each Lender shall be evidenced by a Facility B1 Note
or Facility B2 Note, as the case may be, executed by the Borrower and
each Guarantor, as "avalista," and representing the obligation of the
Borrower to pay to such Lender the unpaid principal amount of such
Loan, plus interest thereon as provided in Clause 10 (Interest). Each
Note shall qualify as a pagare under Mexican law. No Lender shall, in
connection with the enforcement of any Note, be required to introduce
into evidence or prove the existence of this Agreement or the other
Finance Documents (other than such Note) or the making of Loans. In
addition, the Borrower and each Guarantor shall, from time to time at
its expense, execute and/or deliver to each Lender such amendments to
the Notes, or replacement Notes, that may, in the judgment of such
Lender, be necessary and desirable in order to ensure that the Notes
duly reflect the terms of this Agreement. In addition, and without
limiting the foregoing, in the event that (i) any Interest Period of a
different duration from the prior Interest Period shall be selected
with respect to any Facility pursuant to Clause 11 (Interest Periods)
or (ii) the Termination Date of any Facility shall be extended for any
reason or (iii) any Lender assigns any of its rights and benefits in
respect of any Utilisation or transfers by novation any of its rights,
benefits and obligations in respect of any Utilisation pursuant to
Clause 24 (Changes to the Lenders), the Borrower and each Guarantor
shall, at its expense, execute and deliver to each Lender under such
Facility a replacement Note, which shall be subscribed in the same
manner and on the same terms and conditions as the Note theretofore
held by such Lender, and shall be delivered to each such Lender no
later than date on which any such change shall become effective.
SECTION 3
UTILISATION
5. UTILISATION
5.1 Delivery of a Utilisation Request
The Borrower may utilise a Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day within
the Availability Period applicable to that Facility;
(iii) the currency and amount of the Loan complies with
Clause 5.3 (Currency and amount); and
(iv) the proposed Interest Period complies with Clause 11
(Interest Periods).
(b) Only one Loan may be requested in each Utilisation Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be the
Base Currency or an Optional Currency.
(b) Unless the Agent otherwise agrees, the amount of the proposed
Utilisation must be an amount whose Base Currency Amount is
not more than the Available Facility (adjusted, where
applicable, to take account of any additional Utilisations
which are scheduled to take place on or before the relevant
Utilisation Date) and which is:
(i) if the currency selected is the Base Currency, a
minimum of US$20,000,000 or, if less, the relevant
Available Facility; or
(ii) if the currency selected is sterling or euros, a
minimum of (pound)15,000,000 or, as the case may be,
EUR25,000,000 or, if less, the relevant Available
Facility; or
(iii) if the currency selected is an Optional Currency other
than sterling or euros, the minimum amount specified
by the Agent pursuant to paragraph (c)(ii) of Clause
4.4 (Conditions relating to Optional Currencies) or,
if less, the relevant Available Facility.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met,
each Lender shall make its participation in each Loan
available by the Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be
equal to the proportion borne by its Available Commitment to
the relevant Available Facility immediately prior to making
the Loan.
(c) The Agent shall determine the Base Currency Amount of each
Loan which is to be made in an Optional Currency and shall
notify each Lender of the amount, currency and the Base
Currency Amount of each Loan and the amount of its
participation in that Loan, in each case by the Specified
Time.
6. OPTIONAL CURRENCIES
6.1 Selection of currency
The Borrower shall select the currency of each Loan in a Utilisation
Request.
6.2 Unavailability of a currency
If before the Specified Time on any Quotation Day:
(a) a Lender notifies the Agent that the Optional Currency
requested is not readily available to it in the amount
required, and provides in writing an objectively justified
reason therefor; or
(b) a Lender notifies the Agent that compliance with its
obligation to participate in a Loan in the proposed Optional
Currency would contravene a law or regulation applicable to
it,
the Agent will give notice to the Borrower to that effect by the
Specified Time on that day. In this event, any Lender that gives
notice pursuant to this Clause 6.2 will be required to participate in
the Loan in the Base Currency (in an amount equal to that Lender's
proportion of the Base Currency Amount, or in respect of a Rollover
Loan, an amount equal to that Lender's proportion of the Base Currency
Amount of the Rollover Loan that is due to be made) and its
participation will be treated as a separate Loan denominated in the
Base Currency during that Interest Period.
6.3 Agent's calculations
Each Lender's participation in a Loan will be determined in accordance
with paragraph (b) of Clause 5.4 (Lenders' participation).
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 Repayment of Facility B1 Loan
The Borrower shall repay each Facility B1 Loan on the last day of its
Interest Period. If such Loan is to be refinanced with a Rollover
Loan, the amount of each Loan required to be repaid shall be set off
against the amount of the applicable Rollover Loan, provided that all
Facility B1 Loans shall be repaid on, or prior to, the Termination
Date relating thereto.
7.2 Rollover of Facility B1 Loans before Unconditional Date
All Facility B1 Loans utilised prior to the Unconditional Date shall
be refinanced in full with Rollover Loans on the last day of each
relevant Interest Period ending prior to the Unconditional Date.
7.3 Repayment of Facility B2 Loan
The Borrower shall repay the Facility B2 Loan in two equal instalments
on the day falling 24 months after the date of this Agreement and on
the Termination Date for Facility B2.
8. CONVERSION OF FACILITY B1
8.1 Request for Conversion
(a) The Company shall be entitled to request that:
(i) all or part (being an amount or an integral multiple
of US$50,000,000 of the Base Currency Amount) of each
Facility B1 Loan (pro rata amongst the Lenders)
forming part of a Utilisation and outstanding on the
Termination Date relating to Facility B1 be converted
on such Termination Date into term loans maturing on
the Final B1 Termination Date; and
(ii) all or part of the Facility B1 Commitments which have
not been drawn down prior to the Termination Date be
drawn down by way of term loan by the Company on or
before the Termination Date,
by delivering to the Agent a request (a "Conversion Request"),
not less than 10 days nor more than 30 days prior to the
Termination Date.
(b) The Conversion Request shall be unconditional and irrevocable
and, in the case of a Conversion Request for the making of
term loans under paragraph (a)(ii) of this Clause 8.1, shall
be accompanied by a Utilisation Request.
(c) Any outstandings not requested to be converted shall be repaid
in full on the Termination Date.
(d) All undrawn Facility B1 Commitments not the subject of a
Conversion Request shall be cancelled on the Termination Date.
(e) The Agent shall forward a copy of the Conversion Request to
each Lender as soon as practicable after receipt.
8.2 Conversion of Existing Facility B1 Loans
If:
(a) the Company has delivered a conversion Request under Clause
8.1 (Request for Conversion); and
(b) the conditions in Clause 4.2 (Further Conditions Precedent)
would have been met if the Facility B1 Loan to be converted
had been a new Term Loan,
then all or a part of each Facility B1 Loan which is outstanding on
the relevant Termination Date (equal to the amount specified in the
Conversion Request as being converted) shall automatically be
converted into a Term Loan in the currency in which the relevant
outstanding Facility B1 Loan is denominated at the time of the
Conversion Request and shall not be repayable on the original
Termination Date pursuant to Clause 7.1 (Repayment of Facility B1
Loan) but shall instead be repayable on the Final B1 Termination Date.
8.3 Conversion of Undrawn Commitment
If:
(a) the Company has delivered a Conversion Request and Utilisation
Request for the making of Term Loans under paragraph (a)(ii)
and (b) of Clause 8.1 (Request for conversion); and
(b) the conditions in Clause 4.2 (Further Conditions Precedent)
would have been met if such Loan had been a new Term Loan,
then a Term Loan shall be made to the Company and shall not be
repayable on the original Termination Date under Clause 7.1 (Repayment
of Facility B1 Loan) but shall instead be repayable on the Final B1
Termination Date.
8.4 Interest
The first Interest Period for each Term Loan made pursuant to Clauses
8.2 (Conversion of Existing Facility B1 Loans) and Clause 8.3
(Conversion of Undrawn Commitment) shall commence on the original
Termination Date, and shall be of a duration determined in accordance
with Clause 10 (Interest Periods).
9. PREPAYMENT AND CANCELLATION
9.1 Illegality of a Lender
If, at any time, it is or will become unlawful in any applicable
jurisdiction for a Lender to perform any of its obligations as
contemplated by this Agreement or to fund or maintain its
participation in any Utilisation:
(a) that Lender shall promptly notify the Agent upon becoming
aware of that event and in any event at a time which permits
the Borrower to repay that Lender's participation on the date
such repayment is required to be made;
(b) upon the Agent notifying the Borrower, the Commitment of that
Lender will be immediately cancelled; and
(c) the Borrower shall on the last day of the Interest Period for
each Loan occurring after the Agent has notified the Borrower
or, if earlier, the date specified by the Lender in the notice
delivered to the Agent (being no earlier than the last day of
any applicable grace period permitted by law) repay that
Lender's participation in the Loans together with accrued
interest on and all other amounts owing to that Lender under
the Finance Documents.
9.2 Voluntary cancellation
Provided that the Borrower shall not cancel the Facility to the extent
it would, as a result of such cancellation, not have certain funds (as
required under Rule 24.7 of the Code) for the purpose of the Offer,
the Borrower may if it gives the Agent not less than five Business
Days' (or such shorter period as the Majority Lenders in respect of
the Facility to which such cancellation relates may agree) prior
notice, cancel the whole or any part (being a minimum amount of
US$15,000,000 and, if more, an integral multiple of US$5,000,000) of
any Facility. Any cancellation under this Clause 9.2 shall reduce
rateably the Commitments of the Lenders under that Facility.
9.3 Automatic Cancellation
At the close of business on the last day of the Availability Period in
respect of each Facility, the Available Commitment of each Lender
under such Facility shall be (if it has not already been) cancelled
and reduced to zero.
9.4 Voluntary prepayment of Loans
The Borrower may, if it gives the Agent not less than five Business
Days' (or such shorter period as the Majority Lenders in respect of
the relevant Facility may agree) prior notice, prepay the whole or any
part of any Loan (but, if in part, being an amount that reduces the
Base Currency Amount of that Loan by a minimum amount of US$15,000,000
and, if more, an integral multiple of US$5,000,000).
9.5 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender by an Obligor is
required to be increased under paragraph (c) of Clause
14.2 (Tax gross-up); or
(ii) any Lender claims indemnification from an Obligor
under Clause 14.3 (Tax indemnity) or Clause 15.1
(Increased costs),
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent
notice of cancellation of the Commitment of that Lender and
its intention to procure the repayment of that Lender's
participation in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
relevant Commitment of that Lender shall immediately be
reduced to zero.
(c) On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (a) above (or, if
earlier, the date specified by the Borrower in that notice),
the Borrower shall repay that Lender's participation in the
Loans to which such Interest Period relates.
9.6 Capital Markets Proceeds
(a) For the purposes of this Clause 9.6:
"Capital Markets Proceeds" means:
(i) the net cash proceeds received by any member of the
Group from any capital markets financing (including
convertible debt instruments but excluding bank loans)
with a maturity of more than one year (after deducting
any fees and expenses incurred by any member of the
Group in relation to such financings) other than any
financing to the extent used to redeem the Loan Notes;
and
(ii) 50% of net cash proceeds of any equity issuance in the
capital markets by any member of the Group (after
deducting any fees and expenses incurred by any member
of the Group in relation to such financings) other
than any equity issuance contemplated in the Funds
Flow Statement and capital contributions made by Cemex
Parent or any of its subsidiaries in a company which
is a subsidiary of the contributor.
(b) If:
(i) in respect of Cemex Spain, the Net Borrowings to
Adjusted EBITDA ratio (each as defined in the Cemex
Facility C Agreement) is at any time greater than
2.25:1; or
(ii) in respect of the Borrower, the Consolidated Leverage
Ratio was greater than 2.5:1 when last tested pursuant
to Clause 22.12 (Financial Condition Covenants),
the Borrower shall procure that on receipt by any member of
the Group of Capital Market Proceeds such Capital Market
Proceeds are applied as soon as practicable (with a view to
avoiding any prepayment, repayment or broken funding costs and
expenses) in the repayment of Debt owed by the Borrower or any
of its Subsidiaries (including under this Agreement and the
Cemex Facility C Agreement).
(c) The Debt to be repaid pursuant to paragraph (b) above shall be
Utilisations (or utilisations under the Cemex Facility C
Agreement) unless the originally scheduled repayment date of
any other Debt is to occur prior to the scheduled repayment
date for the next repayable Utilisation (or utilisation under
the Cemex Facility C Agreement), in which event, the Borrower
may elect to repay such earlier repayable Debt first.
9.7 Application of mandatory prepayments
A prepayment of Utilisations (or utilisations under the Cemex Facility
C Agreement) made under Clause 9.6 (Capital Markets Proceeds) shall be
applied as the Borrower elects.
9.8 Restrictions
(a) Any notice of cancellation or prepayment given by any Party
under this Clause 9 shall be irrevocable and, unless a
contrary indication appears in this Agreement, shall specify
the date or dates upon which the relevant cancellation or
prepayment is to be made and the amount of that cancellation
or prepayment.
(b) Any prepayment under this Agreement shall be made together
with accrued interest on the amount prepaid and, subject to
any Break Costs, without premium or penalty.
(c) The Borrower may not reborrow any part of Facility B2 nor any
Facility B1 Loan (or part thereof) outstanding after any
conversion under Clause 8 (Conversion of Facility B1) which is
prepaid.
(d) Unless a contrary indication appears in the Agreement, any
part of Facility B1 which is prepaid may be re-borowed in
accordance with the terms of this Agreement.
(e) The Borrower shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except at
the times and in the manner expressly provided for in this
Agreement.
(f) No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated.
(g) If the Agent receives a notice under this Clause 9 it shall
promptly forward a copy of that notice to either the Borrower
or the affected Lenders, as appropriate.
SECTION 5
COSTS OF UTILISATION
10. INTEREST
10.1 Calculation of interest
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR or, in relation to any Loan in euro, EURIBOR; and
(c) Mandatory Cost, if any.
10.2 Payment of interest
On the last day of each Interest Period relating to a Loan, the
Borrower shall pay accrued interest on the Loan to which that Interest
Period relates (and, if the Interest Period is longer than six Months,
on the dates falling at six Monthly intervals after the first day of
that Interest Period).
10.3 Default interest
(a) If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual
payment (both before and after judgment) at a rate which,
subject to paragraph (b) below, is two per cent higher than
the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Loan in
the currency of the overdue amount for successive Interest
Periods, each of a duration of one Month. Any interest
accruing under this Clause 10.3 shall be immediately payable
by the Obligor on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which
became due on a day which was not the last day of an Interest
Period relating to that Loan:
(i) the first Interest Period for that overdue amount
shall have a duration equal to the unexpired portion
of the current Interest Period relating to that Loan;
and
(ii) the rate of interest applying to the overdue amount
during that first Interest Period shall be two per
cent. higher than the rate which would have applied if
the overdue amount had not become due.
(c) Default interest (if unpaid) arising on an overdue amount will
be compounded with the overdue amount at the end of each
Interest Period applicable to that overdue amount but will
remain immediately due and payable.
10.4 Notification of rates of interest
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
11. INTEREST PERIODS
11.1 Selection of Interest Periods
(a) The Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan or (if the Loan is a
Facility B2 Loan and has already been borrowed) in a Selection
Notice.
(b) Each Selection Notice is irrevocable and must be delivered to
the Agent by the Borrower not later than the Specified Time.
(c) If the Borrower fails to deliver a Selection Notice to the
Agent in accordance with paragraph (b) above, the relevant
Interest Period will be one Month.
(d) Subject to this Clause 11, the Borrower may select an Interest
Period of one, two, three or six Months, or any other period
agreed between the Borrower and the Agent (acting on the
instructions of all the Lenders participating in the relevant
Facility).
(e) An Interest Period for a Loan shall not extend beyond the
Termination Date applicable to its Facility (or, in the case
of any Facility B1 Loan which is converted to a term loan
under Clause 8 (Conversion of Facility B1), the Final B1
Termination Date).
(f) Each Interest Period for a Facility B2 Loan shall start on the
Utilisation Date or (if a Loan has already been made) on the
last day of its preceding Interest Period.
(g) Prior to any conversion under Clause 8 (Conversion of Facility
B1) a Facility B1 Loan has one Interest Period only.
11.2 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
11.3 Consolidation and division of Facility B2 Loans
(a) Subject to paragraph (b) below, if two or more Interest
Periods relate to Facility B2 Loans:
(i) in the same currency;
(ii) of the same period; and
(iii) ending on the same date,
those Facility B2 Loans will, unless the Borrower specifies to
the contrary in the Selection Notice for the next Interest
Period, be consolidated into, and be treated as, a single
Facility B2 Loan on the last day of the Interest Period.
(b) Subject to Clause 4.5 (Maximum number of Loans), and Clause
5.3 (Currency and amount) if the Borrower requests in a
Selection Notice that a Facility B2 Loan be divided into two
or more Facility B2 Loans, that Facility B2 Loan will, on the
last day of its Interest Period, be so divided into the Base
Currency Amounts specified in that Selection Notice, being an
aggregate Base Currency Amount equal to the Base Currency
Amount of the Facility B2 Loan immediately before its
division.
12. CHANGES TO THE CALCULATION OF INTEREST
12.1 Absence of quotations
Subject to Clause 12.2 (Market disruption), if LIBOR or, if applicable
EURIBOR, is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on
the Quotation Day, the applicable LIBOR or EURIBOR shall be determined
on the basis of the quotations of the remaining Reference Banks.
12.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for
any Interest Period, then the rate of interest on each
Lender's share of that Loan for the Interest Period shall be
the rate per annum which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon
as practicable and in any event before interest is due
to be paid in respect of that Interest Period, to be
that which expresses as a percentage rate per annum
the cost to that Lender of funding its participation
in that Loan from whatever source it may reasonably
select; and
(iii) the Mandatory Cost, if any, applicable to that
Lender's participation in that Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate not being available
and none or only one of the Reference Banks supplying
a rate to the Agent to determine LIBOR or, if
applicable, EURIBOR for the relevant currency and
Interest Period; or
(ii) before close of business in London on the Quotation
Day for the relevant Interest Period, the Agent
receiving notifications from a Lender or Lenders (in
either case whose participations in a Loan exceed 50
per cent. of that Loan) that the cost to it or them of
obtaining matching deposits in the Relevant Interbank
Market would be in excess of LIBOR or, if applicable,
EURIBOR.
12.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the
Borrower so requires, the Agent and the Borrower shall enter
into negotiations (for a period of not more than thirty days)
with a view to agreeing a substitute basis for determining the
rate of interest in respect of the relevant Loan.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders participating
in the relevant Loan and the Borrower, be binding on all
Parties.
12.4 Break Costs
(a) The Borrower shall, within three Business Days of demand by a
Lender, pay to that Lender its Break Costs attributable to all
or any part of a Loan or Unpaid Sum being paid by the Borrower
on a day other than the last day of an Interest Period for
that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming in
reasonable detail the amount of its Break Costs for any
Interest Period in which they accrue.
13. FEES
13.1 Arrangement fee
The Borrower shall pay to the Arranger an arrangement fee in the
amount and at the times agreed in the Syndication and Fees Letter.
13.2 Agency fee
The Borrower shall pay to (or procure payment to) the Agent (for its
own account) an agency fee in the amount and at the times agreed in
the Syndication and Fees Letter.
13.3 Commitment fee
(a) The Borrower shall pay to the Agent (for the account of each
Lender) a commitment fee computed at the rate of:
(i) 30 per cent. of the applicable Margin from time to
time in relation to Facility B1; and
(ii) for the period of 90 days after the date of this
Agreement, 30 per cent. and thereafter 35 per cent. of
the applicable Margin from time to time in relation to
Facility B2,
on that Lender's Available Commitment for the Availability
Period.
(b) The accrued commitment fees are payable on the last day of
each successive period of three Months which ends during the
Availability Period, on the last day of the Availability
Period and, if cancelled in full, on the cancelled amount of
the relevant Lender's Commitment at the time the cancellation
is effective.
13.4 Term-out fee
The Company shall pay the Agent (for the account of each Lender
participating in Facility B1) a term-out fee of 0.1 per cent. flat
calculated on the Facility B1 Commitments termed-out pursuant to
Clause 8 (Conversion of Facility B1). The term-out fee is payable on
the exercise by the Company of the term-out option pursuant to Clause
8 (Conversion of Facility B1).
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. TAX GROSS UP AND INDEMNITIES
14.1 Definitions
(a) In this Clause 14:
"Protected Party" means a Finance Party which is or will be
subject to any liability or required to make any payment, for
or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be
received or receivable) under a Finance Document.
"Tax Deduction" means a deduction or withholding for or on
account of Tax from a payment made under a Finance Document.
"Tax Payment" means either the increase in a payment made by
an Obligor to a Finance Party under Clause 14.2 (Tax gross-up)
or a payment under Clause 14.3 (Tax indemnity).
(b) Unless a contrary indication appears, in this Clause 14 a
reference to "determines" or "determined" means a
determination made in the absolute good faith discretion of
the person making the determination.
14.2 Tax gross-up
(a) Each Obligor shall make all payments to be made by it without
any Tax Deduction, unless a Tax Deduction is required by law
or regulation.
(b) The Borrower or a Lender shall promptly upon becoming aware
that an Obligor must make a Tax Deduction (or that there is
any change in the rate or the basis of a Tax Deduction) notify
the Agent accordingly. If the Agent receives such notification
from a Lender it shall notify the Borrower and that Obligor.
(c) If a Tax Deduction is required by law or regulation to be made
by an Obligor, the amount of the payment due from that Obligor
shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would
have been due and payable if no Tax Deduction had been
required.
(d) If an Obligor is required to make a Tax Deduction, that
Obligor shall make that Tax Deduction and any payment required
in connection with that Tax Deduction within the time allowed
and in the minimum amount required by law or regulation.
(e) Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Obligor making that Tax Deduction shall deliver to the Agent
for the Finance Party entitled to the payment an original
receipt (or certified copy thereof) or if unavailable such
other evidence as is reasonably satisfactory to that Finance
Party that the Tax Deduction has been made or (as applicable)
any appropriate payment paid to the relevant taxing authority.
14.3 Tax indemnity
(a) The Borrower shall (within five Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the amount
of any Tax assessed on that Protected Party (together with any
interest, costs or expenses payable, directly or indirectly,
or incurred in connection therewith) in relation to a sum
received or receivable (or any sum deemed for the purposes of
Tax to be received or receivable) under a Finance Document.
(b) Paragraph (a) of this Clause 14.3 shall not apply with respect
to any Tax assessed on a Finance Party:
(i) under the laws and regulations of the jurisdiction in
which that Finance Party is incorporated or, if
different, the jurisdiction (or jurisdictions) in
which that Finance Party is treated as resident for
tax purposes; or
(ii) under the laws and regulations of the jurisdiction in
which that Finance Party's Facility Office is located
in respect of amounts received or receivable in that
jurisdiction,
if that Tax is imposed on or calculated by reference to the net income
(but not on any sum deemed to be received or receivable in respect of
any payment made under Clause 14.2 (Tax gross-up)) of that Finance
Party.
(c) A Protected Party making, or intending to make a claim
pursuant to paragraph (a) of this Clause 14.3 shall promptly
notify the Agent of the event which will give, or has given,
rise to the claim, following which the Agent shall notify the
Borrower.
(d) A Protected Party shall, on receiving a payment from an
Obligor under this Clause 14.3, notify the Agent.
14.4 Tax Exemptions
A Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the
Borrower is located, or under any treaty to which such jurisdiction is
a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Agent), upon the Borrower's
reasonable request, such properly completed and executed documentation
as will permit such payments to be made without withholding or at a
reduced withholding tax rate; provided that such Lender is legally
entitled to complete, execute and deliver such documentation and in
such Lender's reasonable judgment such completion, execution or
submission would not cause such Lender or its lending office(s) to
suffer any economic, legal or regulatory disadvantage.
14.5 Stamp taxes
The Borrower shall pay and, within five Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document except
for any such tax payable in connection with the entry into of a
Transfer Certificate.
14.6 Value added tax
(a) All consideration expressed to be payable under a Finance
Document by any Party to a Finance Party shall be deemed to be
exclusive of any VAT. If VAT is chargeable on any supply made
by any Finance Party to any Party in connection with a Finance
Document, that Party shall pay to the Finance Party (in
addition to and at the same time as paying the consideration)
an amount equal to the amount of the VAT and such Finance
Party shall promptly provide an appropriate VAT invoice to
such Party.
(b) Where a Finance Document requires any Party to reimburse a
Finance Party for any costs or expenses, that Party shall also
at the same time pay and indemnify that Finance Party against
all VAT incurred by the Finance Party in respect of the costs
or expenses to the extent that the Finance Party reasonably
determines that it is not entitled to credit or repayment of
the VAT.
15. INCREASED COSTS
15.1 Increased costs
(a) Subject to Clause 15.2 (Increased Cost Claims) and Clause 15.3
(Exceptions) the Borrower shall, within three Business Days of
a demand by the Agent, pay for the account of a Finance Party
the amount of any Increased Costs incurred by that Finance
Party or any of its Affiliates as a result of:
(i) the introduction of or any change in (or in the
interpretation, administration or application of) any
law or regulation; or
(ii) compliance with any law or regulation,
in each case made after the date of this Agreement.
(b) In this Agreement "Increased Costs" means, without
duplication:
(i) a reduction in the rate of return from a Facility or
on a Finance Party's (or its Affiliate's) overall
capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any
Finance Document,
which is incurred or suffered by a Finance Party or any of
its Affiliates to the extent that it is attributable to that
Finance Party having entered into its Commitments or funding
or performing its obligations under any Finance Document.
15.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause
15.1 (Increased costs) shall notify the Agent of the event
giving rise to the claim and a calculation evidencing in
reasonable detail the amount of such Increased Costs to be
claimed by such Finance Party, following which the Agent shall
promptly notify the Borrower and provide the Borrower with
such calculations.
(b) Each Finance Party shall, as soon as practicable after a
demand by the Agent, provide a certificate confirming the
amount of its Increased Costs.
15.3 Exceptions
(a) Clause 15.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law or
regulation to be made by an Obligor;
(ii) compensated for by Clause 14.3 (Tax indemnity) (or
would have been compensated for under Clause 14.3 (Tax
indemnity) but was not so compensated solely because
any of the exclusions in paragraph (b) of Clause 14.3
(Tax indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost;
or
(iv) attributable to the breach by the relevant Finance
Party or its Affiliates of any law or regulation.
(b) In this Clause 15.3, a reference to a "Tax Deduction" has the
same meaning given to the term in Clause 14.1 (Definitions).
16. OTHER INDEMNITIES
16.1 Currency indemnity
(a) If any sum due from an Obligor under the Finance Documents (a
"Sum"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the
"First Currency") in which that Sum is payable into another
currency (the "Second Currency") for the purpose of:
(i) making or filing a claim or proof against that
Obligor; or
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three
Business Days of demand, indemnify each Finance Party to whom
that Sum is due against any cost, loss or liability arising
out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert
that Sum from the First Currency into the Second Currency and
(B) the rate or rates of exchange available to that person at
the time of its receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
16.2 Other indemnities
Each Obligor shall, within five Business Days of demand, indemnify
each Finance Party against any cost, loss or liability not otherwise
compensated under the provisions of this Agreement and excluding any
lost profits, consequential or indirect damages (other than interest
or default interest) incurred by that Finance Party as a result of its
Commitment or the making of any Loan under the Finance Documents as a
result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any
cost, loss or liability arising as a result of Clause 28
(Sharing among the Finance Parties);
(c) funding, or making arrangements to fund, its participation in
a Loan requested by the Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default
or negligence by that Finance Party alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment given by the Borrower.
16.3 Indemnity to the Agent
The Borrower shall (or shall procure that another Obligor will)
promptly indemnify the Agent against any cost, loss or liability
directly related to this Agreement incurred by the Agent (acting
reasonably and otherwise than by reason of the Agent's gross
negligence or wilful misconduct) as a result of:
(a) investigating any event which it reasonably believes (acting
prudently and, if possible, following consultation with the
Borrower) is a Default; or
(b) acting or relying on any notice, request or instruction which
it reasonably believes to be genuine, correct and
appropriately authorised.
17. MITIGATION BY THE LENDERS
17.1 Mitigation
(a) Each Finance Party shall, in consultation with the Borrower,
take all reasonable steps to mitigate any circumstances which
arise after the date of this Agreement and which would result
in any amount becoming payable under or pursuant to, or
cancelled pursuant to, any of Clause 9.1 (Illegality of a
Lender), Clause 14 (Tax gross-up and indemnities), Clause 15
(Increased costs) or paragraph 3 of Schedule 4 (Mandatory Cost
Formulae) including (but not limited to) transferring its
rights and obligations under the Finance Documents to another
Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations
of any Obligor under the Finance Documents.
17.2 Limitation of liability
(a) The Borrower shall (or shall procure that another Obligor
will) indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps
taken by it under Clause 17.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause
17.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
18. COSTS AND EXPENSES
18.1 Transaction expenses
The Borrower shall pay the Agent and the Arranger the amount of all
transaction costs and expenses as set out in the Costs and Expenses
Letter.
18.2 Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 29.9 (Change of currency),
the Borrower shall, within three Business Days of demand, reimburse
the Agent, the Arranger and each Lender for the amount of all costs
and expenses (including legal fees, but in this case, only the legal
fees of one law firm in each relevant jurisdiction acting on behalf of
all the Lenders) reasonably incurred by such parties in responding to,
evaluating, negotiating or complying with that request or requirement.
18.3 Enforcement costs
The Borrower shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
SECTION 7
GUARANTEE
19. GUARANTEE AND INDEMNITY
19.1 Guarantee and indemnity
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by the
Borrower of all the Borrower's obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever the Borrower
does not pay any amount when due under or in connection with
any Finance Document, it shall immediately on demand pay that
amount as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against
any cost, loss or liability suffered by that Finance Party if
any obligation guaranteed by it is or becomes unenforceable,
invalid or illegal. The amount of the cost, loss or liability
shall be equal to the amount which that Finance Party would
otherwise have been entitled to recover.
19.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the
ultimate balance of sums payable by the Borrower under the Finance
Documents, regardless of any intermediate payment or discharge in
whole or in part.
19.3 Reinstatement
If any payment by the Borrower or any discharge given by a Finance
Party (whether in respect of the obligations of the Borrower or any
security for those obligations or otherwise) is avoided or reduced as
a result of insolvency or any similar event:
(a) the liability of the Borrower shall continue as if the
payment, discharge, avoidance or reduction had not occurred;
and
(b) each Finance Party shall be entitled to recover the value or
amount of that security or payment from the Borrower, as if
the payment, discharge, avoidance or reduction had not
occurred.
19.4 Waiver of defences
The obligations of each Guarantor under this Clause 19 will not be
affected by an act, omission, matter or thing which, but for this
Clause 19, would reduce, release or prejudice any of its obligations
under this Clause 19 (without limitation and whether or not known to
it or any Finance Party) including:
(a) any time, waiver or consent granted to, or composition with,
the Borrower or other person;
(b) the release of the Borrower or any other person under the
terms of any composition or arrangement with any creditor of
any member of the Group;
(c) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, the
Borrower or other person or any non-presentation or
non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full
value of any security;
(d) any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of the Borrower or any other person;
(e) any amendment (however fundamental) or replacement of a
Finance Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security; or
(g) any insolvency or similar proceedings.
19.5 Immediate recourse
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from
any person before claiming from a Guarantor under this Clause 19. This
waiver applies irrespective of any law or regulation or any provision
of a Finance Document to the contrary.
Each Guarantor also waives any right to be sued jointly with other
Guarantors and to share liability resulting from any claim against it.
19.6 Appropriations
Until all amounts which may be or become payable by the Borrower under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf)
may:
(a) refrain from applying or enforcing any other monies, security
or rights held or received by that Finance Party (or any
trustee or agent on its behalf) in respect of those amounts,
or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any monies
received from a Guarantor or on account of such Guarantor's
liability under this Clause 19,
provided that the operation of this Clause 19.6 shall not be deemed to
create any Liens.
19.7 Deferral of Guarantors' rights
Until all amounts which may be or become payable by the Borrower under
or in connection with the Finance Documents have been irrevocably paid
in full and unless the Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it
of its obligations under the Finance Documents:
(a) to be indemnified by the Borrower;
(b) to claim any contribution from any other guarantor of the
Borrower's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or
security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party.
19.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by
any other guarantee or security now or subsequently held by any
Finance Party.
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 20 to each Finance Party.
20.1 Status
(a) Each member of the Group:
(i) is a corporation, duly organised and validly existing
under the law of its jurisdiction of incorporation;
(ii) has the power to own its assets, operate its property,
lease the property it operates as a lessee and carry
on its business as it is being conducted;
(iii) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the
conduct of its business requires such qualification;
and
(iv) is in compliance with all Requirements of Law,
except, in the case of paragraphs (ii), (iii) and (iv) above,
as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) The Borrower is in full compliance with the applicable
provisions of the Dutch Banking Act and any implementing
regulations, including, but not limited to, the Dutch
Exemption Regulation and the Dutch Policy Guidelines. The
Borrower has verified the status of each Lender and each such
Lender is either (i) a Professional Market Party or (ii)
exempted from the requirement to be a Professional Market
Party because it forms a closed circle (besloten kring),
within the meaning of the Dutch Exemption Regulation, with the
Borrower.
20.2 Binding obligations
Each Obligor has the power and authority, and the legal right, to
make, deliver and perform each of the Finance Documents to which it is
a party and, in the case of the Borrower, to obtain extensions of
credit hereunder. Each Obligor has taken all necessary corporate or
other organisational action to authorise the execution, delivery and
performance of the Finance Documents to which it is a party and, in
the case of the Borrower, to authorise the extensions of credit on the
terms and conditions of this Agreement. This Agreement has been and as
of the First Utilisation Date each Finance Document to which any
Obligor is a party will have been duly executed and delivered on
behalf of such Obligor. This Agreement constitutes, and each Finance
Document upon execution by such Obligor will constitute, a legal,
valid and binding obligation of such Obligor, enforceable against each
such Obligor in accordance with its terms, except as enforceability
may be limited by applicable concurso mercantil, bankruptcy,
insolvency, reorganisation, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or
at law).
20.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not:
(a) result in a breach or violation of, or constitute a default
under, or result in the creation or imposition of any Lien
upon the assets of any member of the Group pursuant to, any
material Contractual Obligation (including, for the avoidance
of doubt and without limitation, any Contractual Obligation
involving payment obligations in excess of US$5,000,000); or
(b) result in any violation of the statuten, estatutos sociales or
other organisation or governing documents of any member of the
Group or any provision of any Requirement of Law applicable to
any such member of the Group.
20.4 Governmental Approvals
No consent or authorisation of, filing with, notice to or other act by
or in respect of, any Governmental Authority or any other Person is
required in connection with the extensions of credit hereunder or with
the execution, delivery, performance, validity or enforceability of
this Agreement or any of the Finance Documents.
20.5 Governing law, enforcement, no filing and stamp taxes
(a) This Agreement and each of the other Finance Documents are in
proper legal form under the law of Mexico and of The
Netherlands for the enforcement thereof against the Finance
Parties under such law. To ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement
or any other Finance Documents in Mexico or The Netherlands,
it is not necessary that this Agreement or any other Finance
Document be filed or recorded with any Governmental Authority
in Mexico or The Netherlands or that any stamp or similar tax
be paid on or in respect of this Agreement or any other
document to be furnished under this Agreement; provided that
in the event any legal proceedings with respect to any Finance
Document are brought in the courts of Mexico, a Spanish
translation of the documents required in such proceedings,
including such Finance Document, would have to be approved by
the court after the defendant is given an opportunity to be
heard with respect to the accuracy of the translation, and
proceedings would thereafter be based upon the translated
documents.
(b) It is not necessary (i) in order for the Agent or any Lender
to enforce any rights or remedies under any of the Finance
Documents or (ii) solely by reason of the execution, delivery
or performance of this Agreement by the Agent or any Lender,
that the Agent or such Lender be licensed or qualified with
any Mexican or Dutch Governmental Authority or be entitled to
carry on business in Mexico or The Netherlands.
(c) In any action or proceeding involving any Finance Party
arising out of or relating to any Finance Document in any
Mexican or Dutch court or tribunal, the Lenders and the Agent
would be entitled to the recognition and effectiveness of the
choice of law, submission to jurisdiction and waiver of
sovereign immunity provisions of Clause 36 (Governing Law),
Clause 37.1 (Jurisdiction of English Courts) and Clause 38
(Waiver of Sovereign Immunity).
20.6 Deduction of Tax
(a) Each member of the Group has filed or caused to be filed all
material tax returns that are required to be filed and has
paid all taxes due and payable pursuant to such returns or
pursuant to any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority except
where the same may be contested in good faith by appropriate
proceedings and with respect to which reserves to the extent
required by law or pursuant to Applicable GAAP have been
provided on the books of such member of the Group. No material
tax Lien has been filed and, to the knowledge of any Obligor,
no material claim is being asserted, with respect to any such
tax, fee or other charge.
(b) There is no tax (other than taxes on, or measured by, income
or profits), levy, impost, deduction, charge or withholding
imposed, levied, charged, assessed or made by or in the
jurisdiction in which such Obligor is domiciled or any
political subdivision or taxing authority thereof or therein
either (i) on or by virtue of the execution, delivery,
performance, enforcement or admissibility into evidence of
this Agreement or any of the other Finance Documents or (ii)
on any payment to be made by such Obligor pursuant to this
Agreement or any of the other Finance Documents, other than,
with respect to each Guarantor, withholding taxes imposed
pursuant to the Mexican Income Tax Law (Ley del Impuesto sobre
la Renta) on payments of interest, fees and other amounts
deemed to constitute interest to any Lender that is not a
resident of Mexico for tax purposes. Each Obligor is permitted
to pay any additional amounts payable pursuant to Clause 14.2
(Tax gross-up).
20.7 No default
No member of the Group is in default under or with respect to any of
its Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
20.8 No misleading information
(a) Any factual information provided by the Borrower for the
purposes of the Information Memorandum was true and accurate
in all material respects as at the date it was provided or as
at the date (if any) at which it is stated.
(b) The financial projections contained in the Information
Memorandum have been prepared in good faith on the basis of
recent historical information (which prior to the
Unconditional Date, in the case of Target will consist of
publicly available information) and on the basis of the
assumptions stated therein, which assumptions were fair in the
light of conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, the
Borrower's best estimate of its future performance.
(c) So far as the Borrower is aware, after reasonable enquiry,
nothing has occurred or been omitted from the Information
Memorandum and no information has been given or withheld that
results in the information contained in the Information
Memorandum being untrue or misleading in any material respect.
(d) All material written information (other than the Information
Memorandum) supplied by any member of the Group is true,
complete and accurate in all material respects as at the date
it was given and is not misleading in any material respect.
20.9 Financial statements/condition
(a) The financial statements delivered pursuant to Clause 21.1
(Financial statements) are complete and correct in all
material respects and present fairly (i) the consolidated
financial condition of each of Cemex Parent and its
Subsidiaries and Cemex Spain and its Subsidiaries as at the
dates thereof, and the consolidated results of its operations
and its consolidated cash flows for the periods then ended
(subject, in the case of quarterly financial statements, to
normal year-end audit adjustments) and (ii) the financial
condition of the Borrower and each of the Guarantors other
than Cemex Parent as at the dates thereof, and the results of
each of their operations and cash flows for the periods then
ended, subject, in the case of quarterly financial statements,
to normal year-end audit adjustments. All such financial
statements, including the related schedules and notes thereto,
have been prepared in accordance with Applicable GAAP applied
consistently throughout the periods involved.
(b) No member of the Group has any guarantee obligations,
contingent liabilities, liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments,
including without limitation any interest rate or foreign
currency swap or exchange transaction or other obligation in
respect of Derivatives Obligations, which is material and is
not reflected in the most recent financial statements referred
to in paragraph (a) above.
(c) Since 31 December 2003, (i) there has been no development or
event that has had or would reasonably be expected to have a
Material Adverse Effect and (ii) there has been no Disposition
by any member of the Group which has had or would reasonably
be expected to have a Material Adverse Effect.
20.10 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law
applying to companies generally.
20.11 No proceedings pending or threatened
Except as disclosed by Cemex Parent in its filings with the SEC, no
action, suit, investigation, litigation or proceeding before any
arbitrator or Governmental Authority is pending or, to the knowledge
of any member of the Group, threatened by or against any member of the
Group or against any member of the Group's properties or revenues that
(a) is likely to be adversely determined and if adversely determined
would be reasonably likely to have a Material Adverse Effect or (b)
purports to affect the legality, validity or enforceability of any
Finance Document or the consummation of any transaction contemplated
thereby.
20.12 Ownership of Property; Liens
Each member of the Group has title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other property, with such
exceptions as could not reasonably be expected to have a Material
Adverse Effect, and none of its material property is subject to any
Lien other than a Permitted Lien.
20.13 Intellectual Property
Each member of the Group owns, or is licensed to use, all Intellectual
Property necessary for the conduct of its business as currently
conducted free and clear of Liens, conditions, adverse claims or other
restrictions. No material claim has been asserted and is pending by
any Person challenging or questioning the use of any Intellectual
Property or the validity, enforceability or effectiveness of any
Intellectual Property owned by any member of the Group, nor does any
Obligor know of any valid basis for any such claim. The use of
Intellectual Property by each member of the Group does not infringe on
the rights of any Person in any material respect.
20.14 Federal Reserve Regulations
No part of the proceeds of any Loan, and no other extensions of credit
hereunder, will be used for "buying" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under
Regulation U as now and from time to time hereafter in effect or for
any purpose that violates the provisions of the regulations of the
Board or any Governmental Authority.
20.15 Labour Matters
There are no strikes pending or threatened against any member of the
Group, and the hours worked and payments made to employees of each
member of the Group have not been in violation of any applicable
Requirement of Law where any of the foregoing would reasonably be
expected to have a Material Adverse Effect. All material payments due
from any member of the Group, or for which any claim may be made
against any member of the Group, on account of wages and employee
health and welfare insurance and other benefits have been paid or
accrued as a liability on the books of each member of the Group. The
execution, delivery and performance of the Finance Documents by any of
the Obligors will not give rise to a right of termination or right of
renegotiation on the part of any union under any collective bargaining
agreement to which any member of the Group (or any predecessor) is a
party or by which any member of the Group (or any predecessor) is
bound.
20.16 Mutual Benefits
Each Guarantor represents and warrants to each Finance Party as
follows: having taken into account the financial interdependence and
mutual reliance between each Guarantor, its subsidiaries, and the
Borrower, the continuing financial and other assistance from time to
time given by each Guarantor to the Borrower and the other Obligors
and vice versa, each Guarantor expects to derive material benefits,
directly or indirectly (through the financing provided to its
subsidiaries), from the financing obtained under this Facility, both
in its separate capacity, as sole shareholder in various subsidiaries
and as member of the Group, since the successful operation and
condition of each Guarantor is dependent on the continued successful
performance of the functions of the Group as a whole.
20.17 Repetition
The Repeating Representations are deemed to be made by each Obligor by
reference to the facts and circumstances then existing on:
(a) the date of each Utilisation Request and the first day of each
Interest Period; and
(b) in the case of an Additional Guarantor, the day on which the
company becomes (or it is proposed that the company becomes)
an Additional Guarantor.
21. INFORMATION UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
21.1 Financial statements
The Borrower shall supply to the Agent:
(a) as soon as the same become available, but in any event within:
(i) 120 days after the end of each of the financial years
of Cemex Parent:
(A) the audited consolidated financial statements
of Cemex Parent for that financial year; and
(B) the audited unconsolidated financial
statements of each Guarantor (other than Cemex
Parent) for that financial year; and
(ii) 183 days after the end of the financial year of the
Borrower, its audited unconsolidated financial
statements for that financial year; and
(iii) 183 days after the end of the financial year of Cemex
Spain, its audited consolidated financial statements
for that financial year; and
(b) as soon as the same become available, but in any event within:
(i) 60 days after the end of each of the first three
quarterly periods of each of the financial years of
Cemex Parent:
(A) its consolidated financial statements for that
period; and
(B) the unconsolidated financial statements of
each Guarantor (other than Cemex Parent) for
that period; and
(ii) 90 days after the end of each of the first three
quarterly periods of each of the financial years of
the Borrower, its unconsolidated financial statements
for that period; and
(iii) 90 days after the end of each of the first three
quarterly periods of each of the financial years of
Cemex Spain, its consolidated financial statements for
that period.
21.2 Compliance Certificate
(a) The Borrower shall supply to the Agent, with each set of
financial statements delivered pursuant to paragraph
(a)(i)(A), (a)(ii), (a)(iii), (b)(i)(A), (b)(ii) or (b)(iii)
of Clause 21.1 (Financial statements), a Compliance
Certificate setting out (in reasonable detail) computations as
to compliance with Clause 22.12 (Financial condition
covenants) as at the date as at which those financial
statements were drawn up.
(b) Each Compliance Certificate shall be signed by an Authorised
Signatory of Cemex Parent or the Borrower or Cemex Spain, as
the case may be.
21.3 Requirements as to financial statements
(a) Each set of financial statements delivered by the Borrower
pursuant to Clause 21.1 (Financial statements) shall be
certified by an Authorised Signatory of the relevant company
as fairly representing its financial condition as at the date
as at which those financial statements were drawn up.
(b) The Borrower shall procure that each set of financial
statements of an Obligor delivered pursuant to Clause 21.1
(Financial statements) is prepared using Applicable GAAP and
accounting practices and financial reference periods
consistent with those applied in the preparation of the
Original Financial Statements for that Obligor unless, in
relation to any set of financial statements, it notifies the
Agent that there has been a change in Applicable GAAP or the
accounting practices or reference periods and, unless
amendments are agreed in accordance with paragraph (c) of this
Clause 21.3 its auditors (or, if appropriate, the auditors of
the Obligor) deliver to the Agent:
(i) a description of any change necessary for those
financial statements to reflect the Applicable GAAP,
accounting practices and reference periods upon which
that Obligor's Original Financial Statements were
prepared; and
(ii) sufficient information, in form and substance as may
be reasonably required by the Agent, to enable the
Lenders to determine whether Clause 22.12 (Financial
condition covenants) has been complied with and make
an accurate comparison between the financial position
indicated in those financial statements and that
Obligor's Original Financial Statements.
Any reference in this Agreement to those financial statements
shall be construed as a reference to those financial
statements as adjusted to reflect the basis upon which the
Original Financial Statements were prepared.
(c) If the Borrower adopts International Accounting Standards or,
subject to paragraph (b) above, there are changes to the
Applicable GAAP, or the accounting practices or reference
periods the Borrower and the Agent shall, at the Borrower's
request, negotiate in good faith with a view to agreeing such
amendments to the financial covenants in Clause 22.12
(Financial condition covenants) and the ratios used to
calculate the Margin and, in each case, the definitions used
therein as may be necessary to ensure that the criteria for
evaluating the Group's financial condition grant to the
Lenders protection equivalent to that which would have been
enjoyed by them had the Borrower not adopted International
Accounting Standards or there had not been a change in the
Applicable GAAP, or the accounting practices or reference
periods (subject to compliance with paragraph (b) above). Any
amendments agreed will take effect on the date agreed between
the Agent and the Borrower subject to the consent of the
Majority Lenders. If no such agreement is reached within 90
days of the Borrower's request, the Borrower will remain
subject to the obligation to deliver the information specified
in paragraph (b) of this Clause 21.3.
21.4 Information: miscellaneous
The Borrower shall supply to the Agent:
(a) within five days after the same are sent, copies of all
financial statements and reports that Cemex Parent sends to
the holders of any class of its debt securities or public
equity securities and, within five days after the same are
filed, copies of all financial statements and reports that any
Obligor may make to, or file with, the SEC or any other
securities exchange or securities regulator; and
(b) promptly, such further information regarding the financial
condition, business and operations of any member of the Group
as any Finance Party (through the Agent) may reasonably
request.
21.5 Notification of default
(a) Each Obligor shall notify the Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon
becoming aware of its occurrence (unless that Obligor is aware
that a notification has already been provided by another
Obligor).
(b) Promptly upon a request by the Agent, the Borrower shall
supply to the Agent a certificate signed by an Authorised
Signatory on its behalf certifying that no Default is
continuing (or if a Default is continuing, specifying the
Default and the steps, if any, being taken to remedy it).
21.6 "Know your client" checks
(a) Each Obligor shall promptly upon the request of the Agent or
any Lender and each Lender shall promptly upon the request of
the Agent supply, or procure the supply of, such documentation
and other evidence as is reasonably requested by the Agent
(for itself or on behalf of any Lender) or any Lender (for
itself or on behalf of any prospective New Lender) in order
for the Agent, such Lender or any prospective New Lender to
carry out and be satisfied with the results of all necessary
"know your client" or other checks in relation to the identity
of any person that it is required by law to carry out in
relation to the transactions contemplated in the Finance
Documents.
(b) The Borrower shall, by not less than 5 Business Days' written
notice to the Agent, notify the Agent (which shall promptly
notify the Lenders) of its intention to request that one of
its Subsidiaries becomes an Additional Obligor pursuant to
Clause 25 (Changes to the Obligors).
(c) Following the giving of any notice pursuant to paragraph (b)
above, the Borrower shall promptly upon the request of the
Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by
the Agent (for itself or on behalf of any Lender) or any
Lender (for itself or on behalf of any prospective New Lender)
in order for the Agent, such Lender or any prospective New
Lender to carry out and be satisfied with the results of all
necessary "know your client" or other checks in relation to
the identity of any person that it is required by law to carry
out in relation to the accession of such Additional Obligor to
this Agreement.
21.7 Notices
Give notice to the Agent and each Lender as soon as practicable after
the occurrence of:
(a) any (i) default or event of default under any Contractual
Obligation of any member of the Group or (ii) litigation,
investigation or proceeding that may exist at any time between
any member of the Group and any Governmental Authority that,
in ether case, if not cured or if adversely determined, as the
case may be, could reasonably be expected to have a Material
Adverse Effect;
(b) any litigation or proceeding affecting any member of the Group
(i) which, if adversely determined, would reasonably be
expected to have a Material Adverse Effect, or (ii) which
relates to any Finance Document;
(c) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect;
(d) any increase of the ratio of Total Borrowings of the Borrower
to Total Net Worth of Cemex Spain above 0.35 to 1.00, or any
event or change resulting in any senior unsecured long-term
foreign currency denominated Debt of Cemex Spain being rated
less than BBB- by S&P or not being rated by S&P.
Each notice pursuant to this Clause 21.7 shall be accompanied by a
certificate signed by an Authorised Signatory setting forth details of
the occurrence referred to therein and stating what action the
relevant member of the Group proposes to take with respect thereto.
22. GENERAL UNDERTAKINGS
The Borrower and the Guarantors hereby jointly and severally agree
that, so long as the Commitments remain in effect or any Loan or other
amount is owing to any Lender or Agent hereunder, the Borrower and the
Guarantors shall:
22.1 Compliance with laws and contractual obligations, etc.
(a) Comply with all applicable Requirements of Law (including with
respect to the licences, approvals, certificates, permits,
franchises, notices, registrations and other governmental
authorisations necessary to the ownership of its respective
properties or to the conduct of its respective business,
antitrust laws or Environmental Laws and laws with respect to
social security and pension funds obligations) and all
Contractual Obligations, except where the failure to so comply
would not reasonably be expected to result in a Material
Adverse Effect.
(b) In the case of the Borrower, comply with any applicable
provisions of the Dutch Banking Act and any implementing
regulations including, without limitation, the Dutch Exemption
Regulation and the Dutch Policy Guidelines.
(c) In the case of the Borrower, for so long as it is a
requirement of Dutch law that each Lender hereunder be a
Professional Market Party at the time such Lender enters into
this Agreement, the Borrower shall represent and warrant to
each Lender, as of each date that any New Lender becomes a
Lender hereunder, that the Borrower has verified that on such
date such New Lender is either (i) a Professional Market Party
or (ii) exempted from the requirement to be a Professional
Market Party because it forms a closed circle (besloten
kring), within the meaning of the Dutch Exemption Regulation,
with the Borrower.
22.2 Payment of obligations
Pay and discharge, before the same shall become delinquent, (a) all
taxes, assessments and governmental charges or levies assessed,
charged or imposed upon it or upon its property and (b) all lawful
claims that, if unpaid, might by law become a Lien upon its property,
except where the failure to make such payments or effect such
discharges would not reasonably be expected to have a Material Adverse
Effect; provided that no member of the Group shall be required to pay
or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
22.3 Maintenance of insurance
Maintain insurance with reputable insurance companies or associations
in such amounts and covering such risks as is customary for companies
of established reputation engaged in similar businesses and owning
similar properties in the same general areas in which such member of
the Group operates where such insurance is available on reasonable
commercial terms.
22.4 Conduct of business and preservation of corporate existence
Continue to engage in business of the same general type as now
conducted by members of the Group and preserve and maintain its
corporate existence, rights (charter and statutory), licences,
consents, permits, notices or approvals and franchises deemed material
to its business; provided that no member of the Group shall be
required to maintain its corporate existence in connection with a
merger or consolidation permitted by Clause 22.14 (Consolidations and
Mergers), and provided further that no Subsidiary of Cemex Parent,
other than any Obligor, shall be required to preserve any right or
franchise if the Obligors shall determine in good faith that the
preservation thereof is no longer in the best interests of the
Borrower or the Guarantors and the loss thereof could not reasonably
be expected to have a Material Adverse Effect.
22.5 Inspection of property
At any reasonable time during normal business hours and from time to
time with at least ten Business Days' prior notice, or at any time if
a Default or Event of Default shall have occurred and be continuing,
permit the Agent or any of the Lenders or any agents or
representatives thereof to examine and make abstracts from the records
and books of account of, and visit the properties of, such member of
the Group, and to discuss the affairs, finances and accounts of such
member of the Group with any of its officers or directors and with its
independent certified public accountants. All expenses associated with
such inspection shall be borne by the inspecting Lenders; provided
that if a Default or an Event of Default shall have occurred and be
continuing, any expenses associated with such inspection shall be
borne by the Borrower.
22.6 Books and records
Keep proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such member of the Group in accordance with Applicable
GAAP, consistently applied.
22.7 Maintenance of properties, etc.
Maintain and preserve all of its properties that are used or useful in
the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and maintain, preserve and protect
all Intellectual Property and all necessary governmental and third
party approvals, franchises, licences and permits; provided that none
of the foregoing shall prevent any member of the Group from
discontinuing the operation and maintenance of any of its properties
or allowing to lapse certain approvals, licences or permits the
discontinuance of which is desirable in the conduct of its business
and which discontinuance would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
22.8 Environmental laws
(a) Comply in all material respects with, and ensure compliance in
all material respects by all tenants and sub-tenants, if any,
with all applicable Environmental Laws, and obtain and comply
in all material respects with and maintain, and ensure that
all tenants and sub-tenants obtain and comply in all material
respects with and maintain, any and all licences, approvals,
notifications, registrations or permits required by applicable
Environmental Laws, except to the extent the failure to do so
would not reasonably be expected to have a Material Adverse
Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required
under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws, except
to the extent the failure to do so would not reasonably be
expected to have a Material Adverse Effect.
22.9 Maintenance of Government approvals
Maintain in full force and effect at all times all approvals of and
filings with any Governmental Authority required under applicable law
for (a) the conduct of its business (including, without limitation,
antitrust laws or Environmental Laws), except where failure to
maintain any such approvals or filings would not reasonably be
expected to have a Material Adverse Effect and (b) the execution,
delivery and performance by each Obligor of its obligations hereunder
and under the other Finance Documents and for the validity or
enforceability hereof and thereof.
22.10 Pari passu ranking
Take all actions to ensure that at all times the Obligations of each
Obligor under the Finance Documents constitute unconditional general
obligations of such Obligor ranking at least pari passu in all
respects with all other present and future senior unsecured,
unsubordinated Debt of such Obligor.
22.11 Further assurances
From time to time, do and perform any and all acts and execute any and
all documents as may be necessary or as reasonably requested by any
Lender in order to effect the purposes of this Agreement or to protect
the rights or interests of the Lenders under any of the Finance
Documents.
Negative Covenants
The Borrower and the Guarantors hereby jointly and severally agree that, so
long as the Commitments remain in effect or any Loan or other amount is owing
to any Lender or the Agent hereunder, the Borrower and the Guarantors shall
not, and shall not permit any of their Subsidiaries to, directly or
indirectly:
22.12 Financial condition covenants
(a) Permit the Consolidated Leverage Ratio of Cemex Parent at any
time to exceed 3.50 to 1.00.
(b) Permit the Consolidated Fixed Charge Coverage Ratio of Cemex
Parent for any period of four consecutive fiscal quarters of
Cemex Parent to be less than 2.50 to 1.00.
(c) Incur any Debt or other obligation constituting a portion of
Total Borrowings of the Borrower, if at the time of such
incurrence, and after giving effect thereto, (i) the ratio of
Total Borrowings of the Borrower to Total Net Worth of Cemex
Spain exceeds 0.35 to 1.00 or (ii) any senior unsecured
long-term foreign currency denominated Debt of Cemex Spain is
rated less than BBB- by S&P or is not rated by S&P.
22.13 Liens
Create, incur, assume or permit to exist any Lien on or with respect
to any property or asset of any member of the Group, whether now owned
or held or hereafter acquired, other than the following ("Permitted
Liens"):
(a) Liens existing on the date of this Agreement described in
Schedule 11(Permitted Liens) provided that no such Lien is
extended to cover any additional property after the date
hereof, and that the amount of Debt secured thereby is not
increased;
(b) Liens for taxes, assessments and other governmental charges
the payment of which is being contested in good faith by
appropriate proceedings diligently conducted and for which
such reserves or other appropriate provision, if any, as shall
be required by law or by Applicable GAAP shall have been made;
(c) 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 diligently conducted and for which
such reserves or other appropriate provision, if any, as shall
be required by Applicable GAAP shall have been made;
(d) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation,
unemployment insurance and other types of social security;
(e) any attachment or judgment Lien, unless the judgment it
secures shall not, within 60 days after the entry thereof,
have been discharged or execution thereof stayed pending
appeal, or shall not have been discharged within 60 days after
the expiration of any such stay;
(f) (i) any Lien on property acquired by the Borrower or any
Guarantor or any of their Subsidiaries after the date hereof
that was existing on the date of acquisition of such property;
provided that such Lien was not incurred in anticipation of
such acquisition, and (ii) any Lien created to secure all or
any part of the purchase price, or to secure Debt incurred or
assumed to pay all or any part of the purchase price, of
property acquired by the Borrower or any Guarantor or any of
their Subsidiaries after the date hereof, provided that (x)
any such Lien permitted pursuant to this paragraph (f) shall
be confined solely to the item or items of property so
acquired (including, in the case of any Acquisition of a
corporation through the acquisition of 51% or more of the
voting stock of such corporation, the stock and assets of any
Acquired Subsidiary or Acquiring Subsidiary) and, if required
by the terms of the instrument originally creating such Lien,
other property that is an improvement to, or is acquired for
specific use with, such acquired property and (y) 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;
(g) any Lien renewing, extending or refunding any Lien permitted
by paragraph (f) above; provided that the principal amount of
Debt secured by such Lien immediately prior thereto is not
increased or the maturity thereof reduced, and such Lien is
not extended to other property;
(h) any Liens created on shares of capital stock of Cemex Parent
or any of its Subsidiaries solely as a result of the deposit
or transfer of such shares into a trust or a special purpose
vehicle (including any entity with legal personality) of which
such shares constitute the sole assets; provided that (i) any
shares of Subsidiary stock held in such trust or special
purpose vehicle could be sold by Cemex Parent in compliance
with the provisions of this Agreement; and (ii) proceeds from
the deposit or transfer of such shares into such trust or
special purpose vehicle and from any transfer of or
distributions in respect of the member of the Group's interest
in such trust or special purpose vehicle are applied as
provided under Clause 22.15 (Sales of Assets, etc.); and
provided further that such Liens may not secure Debt of Cemex
Parent or any of its Subsidiaries (unless permitted under
another paragraph of this Clause 22.13);
(i) any Liens on securities securing repurchase obligations in
respect of such securities;
(j) any Liens in respect of any Receivables Program Assets which
are or may be sold or transferred pursuant to a Qualified
Receivables Transaction, arising as a result of such Qualified
Receivables Transaction and in connection therewith;
(k) any Liens created in order to undertake the steps contemplated
in the Funds Flow Statement; and
(l) in addition to the Liens permitted by the foregoing paragraphs
(b) through (k), Liens (including any existing Liens described
under paragraph (a) above) securing Debt of Cemex Parent and
its Subsidiaries (taken as a whole) not exceeding at any time
an amount equal to 5% of the Adjusted Consolidated Net
Tangible Assets of Cemex Parent as of the date of the most
recent consolidated balance sheet of Cemex Parent as of the
date of determination,
unless, in each case, the Borrower and the Guarantors have made or
caused to be made effective provision whereby the Obligations
hereunder are secured equally and rateably with, or prior to, the Debt
secured by such Liens (other than Permitted Liens) for so long as such
Debt is so secured.
22.14 Consolidations and mergers
In one or more related transactions (a) consolidate with or merge into
any other Person or permit any other Person to merge into it, or (b)
(save as contemplated in the Funds Flow Statement) directly or
indirectly, transfer, convey, sell, lease or otherwise dispose of all
or substantially all of its properties or assets to any Person unless,
with respect to any such transaction:
(a) immediately after giving effect to such transaction, the
Person formed by or surviving any such consolidation or
merger, if it was not a member of the Group prior to such
consolidation or merger, or the Person that acquires by
transfer, conveyance, sale, lease or other disposition all or
substantially all of the properties or assets of such Obligor
or such Subsidiary (any such Person, a "Successor") shall be a
company organised and validly existing under the laws of its
place of incorporation or organisation, which in the case of a
Successor to the Borrower or any Guarantor, shall be any of
Mexico, the United States, Canada, Denmark, France, Belgium,
Germany, Ireland, Italy, Luxembourg, The Netherlands,
Portugal, Spain, Switzerland or the United Kingdom or any
political subdivision thereof, and shall expressly assume,
pursuant to a written agreement in form and substance
satisfactory to the Majority Lenders, all of the obligations
of the Borrower, such Guarantor or such Subsidiary, as the
case may be, under each of the Finance Documents to which it
is party;
(b) in the case of any such transaction involving the Borrower or
any Guarantor, the Borrower or such Guarantor, or the
Successor of any thereof, as the case may be, shall expressly
agree to indemnify each Lender and the Agent against any tax,
levy, assessment or governmental charge payable by
withholding, deduction or otherwise thereafter imposed on such
Lender or the Agent solely as a consequence of such
transaction with respect to any payments to such Lender or the
Agent under the Finance Documents;
(c) immediately after giving effect to such transaction, including
for purposes of this paragraph (c), the substitution of any
Successor to any Obligor for such Obligor or the substitution
of any Successor to a Subsidiary for such Subsidiary (treating
any Debt or Lien incurred by any Obligor or any Successor to
such Obligor, or by a Subsidiary of any Obligor or any
Successor to such Subsidiary, as a result of such transactions
as having been incurred at the time of such transaction), no
Default or Event of Default shall have occurred and be
continuing;
(d) in the case of any such transaction involving the Borrower or
any Guarantor, no Requirement of Law (whether applicable prior
to, in connection with or upon giving effect to such
transaction) shall be reasonably likely to have a Material
Adverse Effect; and
(e) in the case of any such transaction involving the Borrower or
any Guarantor, the Borrower and, in the case of a Guarantor,
such Guarantor, shall have delivered to the Agent a
certificate signed by an Authorised Signatory of such
Guarantor and an opinion of reputable counsel acceptable to
the Agent and the Majority Lenders, each in form and substance
satisfactory to the Agent and the Majority Lenders and stating
that such consolidation, merger, conveyance, transfer or lease
and such written agreement comply with the relevant provisions
of this Agreement, and that all conditions precedent provided
for in this Agreement relating to such transaction have been
complied with.
22.15 Sales of assets, etc.
(a) Sell, lease or otherwise dispose of any assets (including the
Capital Stock of any Subsidiary) unless the proceeds of the
sale of such assets or property are retained by such Obligor
or such Subsidiary, as the case may be, and as promptly as
practicable after such sale (but in any event within 180 days
of such sale), the proceeds are applied to (i) expenditures
for property, plant and equipment usable in the cement
industry or related industries; (ii) the repayment of senior
Debt of such Obligor or any of its Subsidiaries, whether
secured or unsecured or (iii) investments in companies engaged
in the cement industry or related industries.
(b) The restrictions of paragraph (a) of this Clause 22.15 shall
not apply to sales or other dispositions:
(i) of inventory, trade receivables and assets surplus to
the needs of the business of any member of the Group
sold in the ordinary course of business;
(ii) of assets not used, usable or held for use in
connection with cement operations and related
operations; and
(iii) as contemplated in the Funds Flow Statement.
22.16 Restricted payments
In the case of Cemex Parent only, declare or pay any dividend (other
than dividends payable solely in common stock of Cemex Parent) on, or
make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of Cemex Parent
(other than any cash payment in respect of pre-existing scheduled
obligations under forward purchase agreements for stock of Cemex
Parent entered into by Cemex Parent or its Subsidiaries with
third-party financial institutions) whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or obligations of
any Person (collectively, "Restricted Payments") (a) while any Event
of Default described in paragraph (a) or (b) of Clause 23 (Events of
Default) or any Default or Event of Default described in paragraph (d)
of Clause 23 (Events of Default) (but only with respect to Clause
22.12 (Financial condition covenants)) shall have occurred and be
continuing or (b) if any Default or Event of Default would exist after
giving effect to such Restricted Payment.
22.17 Transactions with Affiliates
Save as contemplated in the Funds Flow Statement, enter into any
transaction, including any purchase, sale, lease or exchange of
property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than
the Borrower or any Guarantor) unless such transaction is (a) not
prohibited by this Agreement and (b) upon commercially fair and
reasonable terms no less favourable to the relevant member of the
Group than it would obtain in a comparable arm's length transaction
with a Person that is not an Affiliate.
22.18 Accounting changes
(a) Make or permit any change in accounting policies or reporting
practices, except as required or permitted by Applicable GAAP or (b)
permit the fiscal year of any Obligor to end on a day other than 31
December or change any Obligor's method of determining fiscal
quarters, unless, in the case of paragraph (b), the Borrower shall
have entered into negotiations with the Agent in order to amend the
relevant provisions of this Agreement so as to equitably reflect such
change in the Borrower's fiscal year end or method of calculating
fiscal quarters with the desired result that the criteria for
evaluating the Borrower's financial condition shall be the same after
such change as if such change had not been made (and until such time
as such an amendment shall have been executed and delivered by the
Borrower, the Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated
or construed as if such change had not occurred).
22.19 Clauses restricting Subsidiary distributions
Enter into or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary
to (a) make Restricted Payments in respect of any Capital Stock of
such Restricted Subsidiary held by, or pay any Debt owed to, any
Obligor or any other such Restricted Subsidiary, (b) make loans or
advances to, or other investments in, any Obligor or any other such
Restricted Subsidiary or (c) transfer any of its assets to any Obligor
or any other such Restricted Subsidiary, except for such encumbrances
or restrictions existing under or by reason of any restrictions with
respect to a Restricted Subsidiary imposed pursuant to an agreement
that has been entered into in connection with the Disposition of all
or substantially all of the Capital Stock or assets of such Restricted
Subsidiary.
22.20 Change in nature of business
With respect to the Borrower, any Guarantor and any Material
Subsidiary of Cemex Parent, make any material change in the nature of
its business as carried on at the date hereof.
22.21 Margin regulations
Use any part of the proceeds of the Loans for any purpose which would
result in any violation (whether by the Borrower, any Guarantor, the
Agent or the Lenders) of Regulation T, U or X of the Federal Reserve
Board or to extend credit to others for any such purpose, or engage
in, or maintain as one of its important activities, the business of
extending credit for the purpose of purchasing or carrying any margin
stock (as defined in such regulations).
22.22 Ownership of Cemex Spain
Permit the Borrower at any time to own less than an 80% direct (or
indirect if solely through intermediate holding companies which have
no indebtedness and no restrictions on their ability to pay dividends)
voting and equity ownership interest in Cemex Spain, or its successors
or transferees in the event of the merger or consolidation of Cemex
Spain or the transfer, conveyance, sale, lease or other disposition of
all or substantially all its properties and assets in Clause 22.14
(Consolidations and mergers).
22.23 Ownership of the Borrower
Permit Cemex Parent at any time to cease to control, or to own less
than a 90% direct or indirect equity ownership interest in, the
Borrower, or its Successors or transferees in the event of the merger
or consolidation of the Borrower or the transfer, conveyance, sale,
lease or other disposition of all or substantially all its properties
and assets in accordance with Clause 22.14 (Consolidations and
mergers).
22.24 Ownership of Trademark Companies
(a) Permit the Borrower, at any time after 31 December 2003, to
own less than a 99.9% direct voting and equity ownership
interest in CTW and each other Trademark Company, provided
that such interest may be indirect in the case of any
Trademark Company in which CTW owns a 99.9% direct voting and
equity ownership interest.
(b) Permit Cemex Parent at any time to own less than 99.9% direct
or indirect voting and equity ownership interest in each
Trademark Company.
22.25 Incurrence of Debt by Trademark Companies
Permit any Trademark Company at any time to assume, incur or suffer to
exist any Debt or other monetary liability of any kind to any Person
other than any member of the Group except, in the case of any monetary
liability not constituting Debt, in the ordinary course pursuant to
its day to day business activities.
23. EVENTS OF DEFAULT
23.1 Events of Default
If any of the following specified events (each an "Event of Default")
shall occur:
(a) any principal of any Loan is not paid when due in accordance
with the terms hereof; or
(b) any interest on any Loan, or any fee or other amount payable
hereunder or under any other Finance Document, is not paid
within three Business Days after any such interest or other
amount becomes due in accordance with the terms hereof; or
(c) any representation or warranty made or deemed made by any
Obligor herein or in any other Finance Document or that is
contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection
with this Agreement or any such other Finance Document shall
prove to have been materially incorrect on or as of the date
made or deemed made and, if remediable, such failure shall
remain unremedied for five days after the earlier of the date
on which (i) a director of any Obligor becomes aware of such
incorrectness and (ii) written notice thereof shall have been
given to the Borrower or any other Obligor by the Agent; or
(d) any Obligor shall default in the observance or performance of
any agreement contained in Clause 21.1 (Financial Statements),
Clause 22.4 (Conduct of business and preservation of corporate
existence) (with respect to the Borrower's or any Guarantor's
existence only), Clause 22.5 (Inspection of Property),
paragraph (a)(i) of Clause 21.7 (Notices), Clause 3 (Purpose),
Clause 22.10 (Pari passu ranking) or Clauses 22.12 (Financial
condition covenants) to Clause 22.25 (Incurrence of debt by
trademark companies) (but only insofar as the default results
from the assumption, incurrence or suffering to exist of Debt)
of this Agreement; or
(e) any Obligor shall default in the observance or performance of
any other agreement contained in this Agreement or any other
Finance Document (other than as provided in paragraphs (a) to
(d) of this Clause), and such default shall continue
unremedied for a period of 30 days after the earlier of (i)
notice to the Borrower or any other Obligor from the Agent or
the Majority Lenders and (ii) a director of any Obligor
becoming aware of such failure; or
(f) (i) one or more members of the Group shall fail to pay any
principal amount of Debt (excluding the Loans) and/or shall
fail to meet any payment or collateralisation obligation in
respect of any Derivatives Obligations that, in one or more
related or unrelated transactions is outstanding in a
principal amount and/or (in the case of Derivatives
Obligations) has a then-current Termination Amount, exceeding
in the aggregate US$50,000,000 (or the equivalent thereof in
other currencies), in each case when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and which failure, in the
case of Derivatives Obligations, continues for a period of
five Business Days; or (ii) any default, event of default or
other event or condition shall occur under any indenture,
agreement or other instrument relating to any Debt and/or
Derivative Obligations that, in one or more related or
unrelated transactions is outstanding in a principal amount
and/or (in the case of Derivatives Obligations) has a
then-current Termination Amount, exceeding in the aggregate
US$50,000,000 (or the equivalent thereof in other currencies),
and the effect of such event or condition is to cause
(automatically or by action of any Person, provided that such
action shall have been taken) any principal amount of such
Debt to become due and payable prior to the date on which it
would otherwise become due and payable and/or any Termination
Amount in respect of any such Derivative Obligations to become
due and payable; or
(g) the Borrower, any Guarantor or any Material Subsidiary shall
commence a voluntary case or other proceeding seeking
liquidation, reorganisation, concurso mercantil or other
relief with respect to itself or its debts under any
bankruptcy, insolvency, reorganisation or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail
generally to pay, or shall be unable to pay, or shall admit in
writing its inability to pay its debts as they become due, or
shall take any corporate action indicating its consent to,
approval of, or acquiescence in any of the foregoing or the
equivalent thereof under Mexican law (including the Ley de
Concursos Mercantiles) or Dutch law; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower, any Guarantor or any Material Subsidiary
seeking liquidation, reorganisation or other relief with
respect to it or its debts under any bankruptcy, insolvency,
concurso mercantil or other similar law now or hereafter in
effect (including but not limited to the Ley de Concursos
Mercantiles) or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed
and unstayed for a period of 60 consecutive days; or an order
for relief shall be entered against any member of the Group
under any bankruptcy, insolvency, concurso mercantil or other
similar law as now or hereafter in effect or shall take any
corporate action indicating its consent to, approval of or
acquiescence in any of the foregoing or the equivalent thereof
under Mexican law (including the Ley de Concursos Mercantiles)
or Dutch law; or
(i) a final judgment or judgments or order or orders not subject
to further appeal shall be rendered against one or more
members of the Group for the payment of money in excess of
US$50,000,000 (or the equivalent thereof in other currencies
or currency units) in the aggregate and either (i) enforcement
proceedings shall have been commenced by any creditor upon any
such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such
judgment or order shall not be in effect; or
(j) any non-monetary judgment or order shall be rendered against
any member of the Group that could be reasonably expected to
have a Material Adverse Effect, and there shall be any period
of 30 consecutive days during which a stay of enforcement of
such judgment order shall not be in effect; or
(k) the obligations of the Borrower or of any Guarantor under this
Agreement or any other Finance Document, shall for any reason
fail to rank at least pari passu in all respects with all
other senior unsecured, unsubordinated Debt of the Borrower or
such Guarantor, as the case may be; or
(l) any Finance Document shall at any time be suspended or revoked
or terminated or for any reason cease to be valid and binding
or in full force and effect (other than upon expiration in
accordance with the terms thereof) or performance of any
obligation thereunder shall become unlawful or the validity or
enforceability thereof shall be contested by any Obligor; or
(m) any governmental or other consent, licence, approval, permit
or authorisation which is now or may in the future be
necessary or appropriate under any applicable Requirement of
Law for the execution, delivery, or performance by, any
Obligor of any Finance Document to which it is a party or to
make such Finance Document legal, valid, enforceable and
admissible in evidence shall not be obtained or shall be
withdrawn, revoked or modified or shall cease to be in full
force and effect or shall be modified in any manner that would
have an adverse effect on the rights or remedies of the Agent
or the Lenders; or
(n) any Governmental Authority shall (i) condemn, nationalise,
seize or otherwise expropriate all or any substantial portion
of the property of, or Capital Stock of any Obligor, any
Material Subsidiary or, if such could reasonably be expected
to have a Material Adverse Effect, any other Subsidiary of the
Borrower or (ii) take any action that would adversely affect
the ability of any Obligor to perform its obligations under
the Finance Documents; or
(o) a moratorium shall be agreed or declared in respect of any
Debt of any Obligor or any restriction or requirement not in
effect on the date hereof shall be imposed, whether by
legislative enactment, decree, regulation, order or otherwise,
which limits the availability or the transfer of foreign
exchange by any Obligor for the purpose of performing any
payment obligation under any Finance Document to which it is
party; or
(p) any material adverse change arises in the financial condition
of the Group taken as a whole which the Majority Lenders
reasonably determine would result in the failure by any
Obligor to perform its payment obligations under any of the
Finance Documents; or
(q) the beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more in voting
power of the outstanding voting stock of any Guarantor shall
be acquired by any Person or group (within the meaning of
Section 13(d) or 14(d) of the Exchange Act); provided that the
acquisition of beneficial ownership of capital stock (i) of
Cemex Parent by Marcelo Zambrano, Lorenzo H. Zambrano or any
of their parents, spouses, progeny (including adopted
children) or siblings, or any progeny (including adopted
children) of any of their siblings, or (ii) of any Guarantor
other than Cemex Parent by any member of the Group (provided
that beneficial ownership by Cemex Parent of such Guarantor
shall not change as a result of any such acquisition) shall
not constitute an Event of Default.
then, and in any such event:
(i) if such event is an Event of Default specified in
paragraphs (h) or (i) above with respect to any
Obligor, automatically the Commitments shall
immediately terminate and the Loans (with accrued
interest thereon) and all other amounts owing under
this Agreement and the other Finance Documents shall
immediately become due and payable; and
(ii) if such event is any other Event of Default, either of
the following actions may be taken:
(A) with the consent of the Majority Lenders, the
Agent may, or upon the request of the Majority
Lenders, the Agent shall, by notice to the
Borrower declare the Commitments to be
terminated forthwith, whereupon the
Commitments shall immediately terminate; and
(B) with the consent of the Majority Lenders, the
Agent may, or upon the request of the Majority
Lenders, the Agent shall, by notice to the
Borrower, declare the Loans (with accrued
interest thereon) and all other amounts owing
under this Agreement and the other Finance
Documents to be due and payable forthwith,
whereupon the same shall immediately become
due and payable.
Except as expressly provided above in this Clause, presentment,
demand, protest and all other notices of any kind are hereby
expressly waived by the Borrower.
23.2 Clean Up Period
If during the Clean-Up Period a matter or circumstance exists in
respect of the Target and/or any member of the Target Group which
would constitute a breach under the Finance Documents including (i) a
breach of any representation or warranty made in Clause 20
(Representations), or (ii) a breach of any covenant set out in Clause
22 (General Undertakings) or (iii) a Default, such matter or
circumstance will not constitute a Default until after the end of the
Clean-Up Period, provided that reasonable steps are being taken to
cure such matter or circumstance (following Bidco or Cemex Parent
becoming aware of the same), unless such matter or circumstance (1)
could reasonably be expected to have a Material Adverse Effect
(assuming for this purpose that the definition thereof is deemed to be
adjusted such that sub paragraph (c) thereof refers solely to payment
obligations and financial covenant obligations) or (2) has been
procured by, or approved by, Cemex Parent or Bidco.
SECTION 9
CHANGES TO PARTIES
24. CHANGES TO THE LENDERS
24.1 Assignments and transfers by the Lenders
Subject to this Clause 24, a Lender (the "Existing Lender") may:
(a) assign any of its rights and benefits in respect of any
Utilisation; or
(b) transfer by novation any of its rights, benefits and
obligations in respect of any Commitment or Utilisation,
to another bank or financial institution or to a securitisation trust
or fund or (subject to paragraph (a) of Clause 24.2 (Conditions of
assignment or transfer)) other entity (the "New Lender").
24.2 Conditions of assignment or transfer
(a) The Borrower must be given prior notification of any
assignment or transfer becoming effective under Clause 24.1
(Assignments and transfers by the Lenders) and the consent of
the Borrower is required for an assignment or transfer to an
entity which is not a bank or financial institution or a
securitisation trust or fund.
(b) The consent of the Borrower to an assignment or transfer must
not be unreasonably withheld or delayed. The Borrower will be
deemed to have given its consent five Business Days after the
Existing Lender has requested it unless consent is expressly
refused by the Borrower within that time.
(c) An assignment will only be effective on:
(i) receipt by the Agent of written confirmation from the
New Lender that the New Lender will assume the same
obligations to the other Finance Parties as it would
have been under if it was an Original Lender; and
(ii) the satisfaction of the Agent with the results of all
"know your client" or other checks relating to the
identity of any person that it is required by law to
carry out in relation to such assignment to a New
Lender, the completion of which the Agent shall
promptly notify to the Existing Lender and the New
Lender.
(d) A transfer will only be effective if the procedure set out in
Clause 24.5 (Procedure for transfer) is complied with.
(e) An assignment or transfer will be effective upon surrender for
registration of assignment or transfer, by way of an
endorsement (endoso) and delivery of the Notes held by the
Existing Lender evidencing such Loan accompanied by a duly
executed Transfer Certificate, and thereupon one or more new
Notes shall be issued to the New Lender.
(f) If:
(i) a Lender assigns or transfers any of its rights,
benefits or obligations under the Finance Documents or
changes its Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor
would be obliged to make a payment to the New Lender
or Lender acting through its new Facility Office under
Clause 14 (Tax gross-up and indemnities) or Clause 15
(Increased costs),
then the New Lender or Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses
to the same extent as the Existing Lender or Lender acting
through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
(g) Notwithstanding any of the preceding provisions of this Clause
24 to the contrary, for so long as it is a requirement of
Dutch law that each Lender be a Professional Market Party (i)
any Existing Lender shall, at least five Business Days prior
to the date of any proposed assignment, provide to the
Borrower and the Agent information in respect of the
prospective New Lender sufficient to enable the Borrower to
verify the Professional Market Party status of such New Lender
and (ii) no such assignment shall be permitted unless the New
Lender is a Verifiable Professional Market Party or unless the
Borrower determines that such New Lender qualifies as a
Professional Market Party; provided that the Borrower shall be
deemed to have made such determination if, on or prior to the
fifth Business Day after the Existing Lender has provided the
information described in section (i) above, the Borrower has
not made a good faith determination, based on an opinion of
reputable Dutch counsel, and notified the Agent and the
Existing Lender thereof (together with a copy of such opinion
of counsel) in writing, that (x) the Assignee does not qualify
as a Professional Market Party or (y) the Borrower is unable
to determine whether the New Lender qualifies as a
Professional Market Party.
24.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of $2,000,
except no such fee shall be payable in connection with an assignment
or transfer to a New Lender upon primary syndication of the
Facilities.
24.4 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender
makes no representation or warranty and assumes no
responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or
oral) made in or in connection with any Finance
Document or any other document,
and any representations or warranties implied by law or
regulation are excluded.
(b) Each New Lender confirms to the Existing Lender, and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own
independent investigation and assessment of the
financial condition and affairs of each Obligor and
its related entities in connection with its
participation in this Agreement and has not relied
exclusively on any information provided to it by the
Existing Lender in connection with any Finance
Document; and
(ii) will continue to make its own independent appraisal of
the creditworthiness of each Obligor and its related
entities whilst any amount is or may be outstanding
under the Finance Documents or any Commitment is in
force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under
this Clause 24; or
(ii) support any losses directly or indirectly incurred by
the New Lender by reason of the non-performance by any
Obligor of its obligations under the Finance Documents
or otherwise.
24.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 24.2 (Conditions
of assignment or transfer) a transfer is effected in
accordance with paragraph (b) below when the Agent executes an
otherwise duly completed Transfer Certificate delivered to it
by the Existing Lender and the New Lender. The Agent shall, as
soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply
with the terms of this Agreement and delivered in accordance
with the terms of this Agreement, execute that Transfer
Certificate and send a copy to the Borrower.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its
rights and obligations under the Finance Documents
each of the Obligors and the Existing Lender shall be
released from further obligations towards one another
under the Finance Documents and their respective
rights against one another under the Finance Documents
shall be cancelled (being the "Discharged Rights and
Obligations");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor
and the New Lender have assumed and/or acquired the
same in place of that Obligor and the Existing Lender;
(iii) the Agent, the Arranger, the New Lender and the other
Lenders, shall acquire the same rights and assume the
same obligations between themselves as they would have
acquired and assumed had the New Lender been an
Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer
and to that extent the Agent, the Arranger and the
Existing Lender shall each be released from further
obligations to each other under the Finance Documents;
and
(iv) the New Lender shall become a Party as a "Lender".
24.6 Copy of Transfer Certificate to Borrower
The Agent shall, as soon as reasonably practicable after it has
received a Transfer Certificate, send to the Borrower a copy of that
Transfer Certificate.
24.7 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under the Finance Documents;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation (provided that,
for so long as it is a requirement of Dutch law, such
sub-participant qualifies as a Professional Market Party) in
relation to, or any other transaction under which payments are
to be made by reference to, the Finance Documents; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents
as that Lender shall consider appropriate provided that the person to
whom the information is to be given has entered into a Confidentiality
Undertaking.
24.8 Interest
All interest accrued in the Interest Period in which a transfer is
effective shall be paid to the Existing Lender.
24.9 Existing Lenders
No person may become a Lender under this Agreement until it has
confirmed at the date of this Agreement that it is either (i) a
Professional Market Party or (ii) exempted from the requirement to be
a Professional Market Party because it forms a closed circle (besolten
kring), within the meaning of the Dutch Exemption Regulation, with the
Borrower.
25. CHANGES TO THE OBLIGORS
25.1 Assignments and transfers by Obligors
No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
25.2 Additional Guarantors
(a) Subject to compliance with the provisions of paragraphs (b)
and (c) of Clause 21.6 ("Know your client" checks), the
Borrower may request that any of its wholly owned Subsidiaries
become an Additional Guarantor.
(b) The Borrower shall procure that in respect of (i) each of its
Subsidiaries to whom a sale, lease, transfer or other disposal
is made by an Obligor in accordance with the terms of this
Agreement; (ii) each of its Subsidiaries which is or which is
deemed to be a Material Subsidiary in accordance with the
terms of this Agreement, such Subsidiary or the Holding
Company of such Material Subsidiary (at the election of the
Borrower) or such person respectively become an Additional
Guarantor (unless such Subsidiary or such Material Subsidiary
(in the case of (i) and (ii) respectively) is already a
Guarantor) by:
(A) the Borrower delivering to the Agent a duly completed
and executed Accession Letter; and
(B) the Agent receiving from the Borrower all of the
documents and other evidence referred to in Part II of
Schedule 2 (Conditions Precedent required to be
delivered by an Additional Guarantor) in relation to
that Additional Guarantor.
(c) The Agent shall notify the Guarantors and the Lenders promptly
upon being satisfied that it has received all the documents
and other evidence listed in Part II of Schedule 2 (Conditions
Precedent required to be delivered by an Additional
Guarantor).
(d) For the purposes of this Clause 25.2 only, a "Holding Company"
means, in relation to a Material Subsidiary, any company or
corporation in respect of which it is a Subsidiary and which
is not in turn a Subsidiary of a Holding Company (as defined
in Clause 1.1 (Definitions)).
25.3 Resignation of Guarantor
A Guarantor (a "Resigning Guarantor") will cease to be a Guarantor if:
(a) it makes a sale, lease, transfer or other disposal of all or
substantially all (but not a part only) of its assets to
another member of the Group which is or becomes a Guarantor in
accordance with paragraph (a) (i) of Clause 25.2 (Additional
Guarantors); or
(b) its Holding Company becomes a Guarantor,
provided that:
(i) such Resigning Guarantor also, if applicable, ceases
concurrently to be a guarantor in respect of any other
indebtedness of the Group or of any member of the
Group;
(ii) such Resigning Guarantor notifies the Agent of any
sale, lease, transfer or other disposal in accordance
with paragraph (a) of this Clause 25.3; and
(iii) the Borrower may not resign as a Guarantor without the
consent of all Lenders.
25.4 Repetition of Representations
Delivery of an Accession Letter constitutes confirmation by the
relevant Affiliate that the Repeating Representations are true and
correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.
SECTION 10
THE FINANCE PARTIES
26. ROLE OF THE AGENT AND THE ARRANGER
26.1 Appointment of the Agent
(a) Each of the Arranger and the Lenders appoints the Agent to act
as its agent under and in connection with the Finance
Documents.
(b) Each of the Arranger and the Lenders, authorises the Agent to
exercise the rights, powers, authorities and discretions
specifically given to the Agent under or in connection with
the Finance Documents together with any other incidental
rights, powers, authorities and discretions.
26.2 Duties of the Agent
(a) The Agent shall promptly forward to a Party the original or a
copy of any document (including, but not limited to, the
Borrower's annual financial statements) which is delivered to
the Agent for that Party by any other Party.
(b) The Agent is not obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to
another Party.
(c) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify
the other Finance Parties.
(d) If the Agent is aware of the non-payment of any principal,
interest or fee payable to a Finance Party (other than the
Agent or the Arranger) under this Agreement it shall promptly
notify the other Finance Parties.
(e) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
26.3 Role of the Arranger
Except as specifically provided in the Finance Documents, the Arranger
has no obligations of any kind to any other Party under or in
connection with any Finance Document.
26.4 No fiduciary duties
(a) Nothing in this Agreement constitutes the Agent and/or the
Arranger, as a trustee or fiduciary of any other person.
(b) Neither the Agent nor the Arranger shall be bound to account
to any Lender for any sum or the profit element of any sum
received by it for its own account.
26.5 Business with the Group
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any
member of the Group.
26.6 Rights and discretions of the Agent
(a) The Agent may rely on:
(i) any representation, notice or document (including, for
the avoidance of doubt, any representation, notice or
document communicating the consent of the Majority
Lenders pursuant to Clause 35.1 (Required consents))
believed by it to be genuine, correct and
appropriately authorised; and
(ii) any statement made by a director, authorised signatory
or employee of any person regarding any matters which
may reasonably be assumed to be within his knowledge
or within his power to verify.
(b) The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual
knowledge of a Default arising under paragraphs (a) or
(b) of Clause 23 (Events of Default));
(ii) any right, power, authority or discretion vested in
any Party or the Majority Lenders has not been
exercised; and
(iii) any notice or request made by the Borrower (other than
a Utilisation Request or Selection Notice) is made on
behalf of and with the consent and knowledge of all
the Obligors.
(c) The Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other
experts.
(d) The Agent may act in relation to the Finance Documents through
its personnel and agents.
(e) The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this
Agreement.
(f) Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent nor the Arranger is obliged to
do or omit to do anything if it would or might in its
reasonable opinion constitute a breach of any law and
regulation or a breach of a fiduciary duty or duty of
confidentiality.
26.7 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document,
the Agent shall (i) exercise any right, power, authority or
discretion vested in it as Agent in accordance with any
instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising
any right, power, authority or discretion vested in it as
Agent) and (ii) not be liable for any act (or omission) if it
acts (or refrains from taking any action) in accordance with
an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document,
any instructions given by the Majority Lenders will be binding
on all the Finance Parties.
(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or,
if appropriate, the Lenders) the Agent may act (or refrain
from taking action) as it considers to be in the best interest
of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal
or arbitration proceedings relating to any Finance Document.
26.8 Responsibility for documentation
Neither the Agent nor the Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness
of any information (whether oral or written) supplied by the
Agent, the Arranger, an Obligor or any other person given in
or in connection with any Finance Document or the Information
Memorandum; or
(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any
other agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any Finance
Document.
26.9 Exclusion of liability
(a) Without limiting paragraph (b) below, neither the Agent nor
the Arranger will be liable for any action taken by it under
or in connection with any Finance Document, unless directly
caused by its gross negligence or wilful misconduct or wilful
breach of any Finance Document.
(b) No Party (other than the Agent) may take any proceedings
against any officer, employee or agent of the Agent in respect
of any claim it might have against the Agent or in respect of
any act or omission of any kind by that officer, employee or
agent in relation to any Finance Document or any Transaction
Document and any officer, employee or agent of the Agent may
rely on this Clause 26 subject to Clause 1.4 (Third Party
Rights) and the provisions of the Third Parties Act.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the
Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system
used by the Agent for that purpose.
(d) Nothing in this Agreement shall oblige the Agent or the
Arranger to carry out any checks pursuant to any laws or
regulations relating to money laundering in relation to any
person on behalf of any Lender and each Lender confirms to the
Agent and the Arranger that it is solely responsible for any
such checks it is required to carry out and that it may not
rely on any statement in relation to such checks made by the
Agent or the Arranger.
26.10 Lenders' indemnity to the Agent
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify
the Agent, within three Business Days of demand, against any cost,
loss or liability incurred by the Agent (otherwise than by reason of
the Agent's gross negligence or wilful misconduct) in acting as Agent
under the Finance Documents (unless the Agent has been reimbursed by
an Obligor pursuant to a Finance Document).
26.11 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in the European Union as successor by giving
notice to the other Finance Parties and the Borrower.
(b) Alternatively the Agent may resign by giving notice to the
other Finance Parties and the Borrower, in which case the
Majority Lenders (after consultation with the Borrower) may
appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent
in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Agent (after consultation
with the Borrower) may appoint a successor Agent (acting
through an office in the European Union).
(d) The retiring Agent shall, at its own cost, make available to
the successor Agent such documents and records and provide
such assistance as the successor Agent may reasonably request
for the purposes of performing its functions as Agent under
the Finance Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall
be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
this Clause 26. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves
as they would have had if such successor had been an original
Party.
(g) After consultation with the Borrower, the Majority Lenders
may, by notice to the Agent, require it to resign in
accordance with paragraph (b) above. In this event, the Agent
shall resign in accordance with paragraph (b) above.
26.12 Confidentiality
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions
or departments.
(b) If information is received by another division or department
of the Agent, it may be treated as confidential to that
division or department and the Agent shall not be deemed to
have notice of it.
(c) Notwithstanding any other provision of any Finance Document
to the contrary, none of the Agent and the Arranger are
obliged to disclose to any other person (i) any confidential
information or (ii) any other information if the disclosure
would or might in its reasonable opinion constitute a breach
of any law or a breach of a fiduciary duty.
26.13 Relationship with the Lenders
(a) The Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility
Office unless it has received not less than five Business Days
prior notice from that Lender to the contrary in accordance
with the terms of this Agreement.
(b) Each Lender shall supply the Agent with any information
required by the Agent in order to calculate the Mandatory Cost
in accordance with Schedule 4 (Mandatory Cost Formulae).
26.14 Credit appraisal by the Finance Parties
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Finance Party confirms to the Agent that it has been,
and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or
in connection with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of
the Group;
(b) the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document;
(c) whether that Finance Party has recourse, and the nature and
extent of that recourse, against any Party or any of its
respective assets under or in connection with any Finance
Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in
connection with any Finance Document; and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent,
any Party or by any other person under or in connection with
any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
under or in connection with any Finance Document.
26.15 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be a Lender, the Agent
shall (in consultation with the Borrower) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
26.16 Agent's Management Time
Any amount payable to the Agent under Clause 16.3 (Indemnity to the
Agent) and Clause 26.10 (Lenders' indemnity to the Agent) shall
include the cost of utilising the Agent's management time or other
resources and will be calculated on the basis of such reasonable daily
or hourly rates as the Agent may notify to the Borrower and the
Lenders, and is in addition to any fee paid or payable to the Agent
under Clause 13 (Fees).
26.17 Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents
the Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent
would otherwise be obliged to make under the Finance Documents and
apply the amount deducted in or towards satisfaction of the amount
owed. For the purposes of the Finance Documents that Party shall be
regarded as having received any amount so deducted.
27. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating
to its affairs (tax or otherwise) or any computations in
respect of Tax.
28. SHARING AMONG THE FINANCE PARTIES
28.1 Payments to Finance Parties
If a Finance Party (a "Recovering Finance Party") receives or recovers
any amount from an Obligor other than in accordance with Clause 29
(Payment mechanics) (whether by way of set-off or otherwise) and
applies that amount to a payment due under the Finance Documents then:
(a) the Recovering Finance Party shall, within three Business
Days, notify details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is
in excess of the amount the Recovering Finance Party would
have been paid had the receipt or recovery been received or
made by the Agent and distributed in accordance with Clause 29
(Payment mechanics), without taking account of any Tax which
would be imposed on the Agent in relation to the receipt,
recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days
of demand by the Agent, pay to the Agent an amount (the
"Sharing Payment") equal to such receipt or recovery less any
amount which the Agent determines may be retained by the
Recovering Finance Party as its share of any payment to be
made, in accordance with Clause 29.5 (Partial payments).
28.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by
the relevant Obligor and distribute it between the Finance Parties
(other than the Recovering Finance Party) in accordance with Clause
29.5 (Partial payments).
28.3 Recovering Finance Party's rights
(a) On a distribution by the Agent under Clause 28.2
(Redistribution of payments), the Recovering Finance Party
will be subrogated to the rights of the Finance Parties which
have shared in the redistribution.
(b) If and to the extent that the Recovering Finance Party is not
able to rely on its rights under paragraph (a) above, the
relevant Obligor shall be liable to the Recovering Finance
Party for a debt equal to the Sharing Payment which is
immediately due and payable.
28.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a
Recovering Finance Party becomes repayable and is repaid by that
Recovering Finance Party, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 28.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent
for account of that Recovering Finance Party an amount equal
to the appropriate part of its share of the Sharing Payment
(together with an amount as is necessary to reimburse that
Recovering Finance Party for its proportion of any interest on
the Sharing Payment which that Recovering Finance Party is
required to pay); and
(b) that Recovering Finance Party's rights of subrogation in
respect of any reimbursement shall be cancelled and the
relevant Obligor will be liable to the reimbursing Finance
Party for the amount so reimbursed.
28.5 Exceptions
(a) This Clause 28 shall not apply to the extent that the
Recovering Finance Party would not, after making any payment
pursuant to this Clause, have a valid and enforceable claim
against the relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any
other Finance Party any amount which the Recovering Finance
Party has received or recovered as a result of taking legal or
arbitration proceedings, if:
(i) it notified that other Finance Party of the legal or
arbitration proceedings; and
(ii) that other Finance Party had an opportunity to
participate in those legal or arbitration proceedings
but did not do so as soon as reasonably practicable
having received notice and did not take separate legal
or arbitration proceedings.
SECTION 11
ADMINISTRATION
29. PAYMENT MECHANICS
29.1 Payments to the Agent
(a) On each date on which an Obligor or a Lender is required to
make a payment under a Finance Document, that Obligor or
Lender shall make the same available to the Agent (unless a
contrary indication appears in a Finance Document) for value
on the due date at the time and in such funds specified by the
Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
(b) Payments by Obligors or Lenders shall be made to such account
in the principal financial centre of the country of that
currency (or, in relation to euro, in a principal financial
centre in a Participating Member State or London) with such
bank as the Agent specifies.
29.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 29.3 (Distributions to an
Obligor), Clause 29.4 (Clawback) and Clause 26.17 (Deduction from
amounts payable by the Agent) be made available by the Agent as soon
as practicable after receipt to the Party entitled to receive payment
in accordance with this Agreement (in the case of a Lender, for the
account of its Facility Office), to such account as that Party may
notify to the Agent by not less than five Business Days' notice with a
bank in the principal financial centre of the country of that currency
(or, in relation to euro, in a principal financial centre in a
Participating Member State or London).
29.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 30 (Set-off) apply any amount received by it for that Obligor
in or towards payment (on the date and in the currency and funds of
receipt) of any amount due from that Obligor under the Finance
Documents or in or towards purchase of any amount of any currency to
be so applied.
29.4 Clawback
(a) Where a sum is to be paid to the Agent under the Finance
Documents for another Party, the Agent is not obliged to pay
that sum to that other Party (or to enter into or perform any
related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to
be the case that the Agent had not actually received that
amount, then the Party to whom that amount (or the proceeds of
any related exchange contract) was paid by the Agent shall on
demand refund the same to the Agent together with interest on
that amount from the date of payment to the date of receipt by
the Agent, calculated by the Agent to reflect its cost of
funds.
29.5 Partial payments
(a) If the Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Agent shall apply that
payment towards the obligations of that Obligor under the
Finance Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid
fees, costs and expenses of the Agent and the Arranger
under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any
accrued interest, fee or commission due but unpaid
under this Agreement;
(iii) thirdly, in or towards payment pro rata of any
principal due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other
sum due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary
the order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation
made by an Obligor.
29.6 No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents
shall be calculated and be made without (and free and clear of any
deduction for) set-off or counterclaim.
29.7 Business Days
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding
Business Day (if there is not).
(b) During any extension of the due date for payment of any
principal or Unpaid Sum under this Agreement interest is
payable on the principal or Unpaid Sum at the rate payable on
the original due date.
29.8 Currency of account
(a) Subject to paragraphs (b) to (e) below, the Base Currency is
the currency of account and payment for any sum due from an
Obligor under any Finance Document.
(b) A repayment of a Utilisation or Unpaid Sum or a part of a
Utilisation or Unpaid Sum shall be made in the currency in
which that Utilisation or Unpaid Sum is denominated on its due
date.
(c) Each payment of interest shall be made in the currency in
which the sum in respect of which the interest is payable was
denominated when that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be
made in the currency in which the costs, expenses or Taxes are
incurred.
(e) Any amount expressed to be payable in a currency other than
the Base Currency shall be paid in that other currency.
29.9 Change of currency
(a) Unless otherwise prohibited by law or regulation, if more than
one currency or currency unit are at the same time recognised
by the central bank of any country as the lawful currency of
that country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in,
the currency of that country shall be translated into,
or paid in, the currency or currency unit of that
country designated by the Agent (after consultation
with the Borrower); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of
that currency or currency unit into the other rounded
up or down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this
Agreement will, to the extent the Agent (acting reasonably and
after consultation with the Borrower) specifies to be
necessary be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank
Market and otherwise to reflect the change in currency.
30. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance
Party to that Obligor, regardless of the place of payment, booking
branch or currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either obligation
at a market rate of exchange in its usual course of business for the
purpose of the set-off.
31. NOTICES
31.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may
be made by fax or letter or (in accordance with Clause 31.5
(Electronic Communication)) by email.
31.2 Addresses
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in
connection with the Finance Documents is:
(a) in the case of the Borrower, that identified with its name
below;
(b) in the case of each Lender, or any other Obligor, that
notified in writing to the Agent on or prior to the date on
which it becomes a Party; and
(c) in the case of the Agent, that identified with its name below,
or any substitute address or fax number or department or officer as
the Party may notify to the Agent (or the Agent may notify to the
other Parties, if a change is made by the Agent) by not less than five
Business Days' notice.
31.3 Delivery
(a) Any communication or document made or delivered by one person
to another under or in connection with the Finance Documents
will only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the
relevant address or five Business Days after being
deposited in the post postage prepaid in an envelope
addressed to it at that address,
and, if a particular department or officer is specified as
part of its address details provided under Clause 31.2
(Addresses), if addressed to that department or officer.
(b) Any communication or document to be made or delivered to the
Agent will be effective only when actually received by the
Agent and then only if it is expressly marked for the
attention of the department or officer identified with the
Agent's signature below (or any substitute department or
officer as the Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Agent. The Borrower may make and/or deliver as agent of each
Obligor notices and/or requests on behalf of each Obligor.
(d) Any communication or document made or delivered to the
Borrower in accordance with this Clause will be deemed to have
been made or delivered to each of the Obligors.
31.4 Notification of address and fax number
Promptly upon receipt of notification of an address or fax number or
change of address or fax number pursuant to Clause 31.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the
other Parties.
31.5 Electronic communication
(a) Any communication to be made between the Agent and a Lender
and/or any member of the Group under or in connection with the
Finance Documents may be made by electronic mail or other
electronic means, if the Agent and the relevant Lender and/or
member of the Group:
(i) agree that, unless and until notified to the contrary,
this is to be an accepted form of communication;
(ii) notify each other in writing of their electronic mail
address and/or any other information required to
enable the sending and receipt of information by that
means; and
(iii) notify each other of any change to their address or
any other such information supplied by them.
(b) Any electronic communication made between the Agent and a
Lender and/or any member of the Group will be effective only
when actually received in readable form and in the case of any
electronic communication made by a Lender and/or any member of
the Group to the Agent only if it is addressed in such a
manner as the Agent shall specify for this purpose.
31.6 English language
(a) Any notice given under or in connection with any Finance
Document must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be:
(i) in English or Spanish; or
(ii) if not in English or Spanish and if so required by the
Agent, accompanied by a certified English translation
and, in this case, the English translation will
prevail unless the document is a constitutional,
statutory or other official document.
31.7 Obligor Agent
(a) Each Obligor (other than the Borrower) by its execution of
this Agreement or an Accession Letter (as the case may be)
irrevocably appoints the Borrower to act on its behalf as its
agent in relation to the Finance Documents and irrevocably
authorises (i) the Borrower on its behalf to supply all
information concerning itself contemplated by this Agreement
to the Finance Parties and to give all notices and
instructions (including, in the case of a Borrower,
Utilisation Requests, Renewal Requests or Selection Notices),
to execute on its behalf any documents required hereunder and
to make such agreements capable of being given or made by any
Obligor notwithstanding that they may affect such Obligor,
without further reference to or consent of such Obligor; and
(ii) each Finance Party to give any notice, demand or other
communication to such Obligor pursuant to the Finance
Documents to the Borrower on its behalf, and in each case such
Obligor shall be bound thereby as though such Obligor itself
had given such notices and instructions (including, without
limitation, any Utilisation Requests, Renewal Requests or
Selection Notices) or executed or made such agreements or
received any notice, demand or other communication.
(b) Every act, agreement, undertaking, settlement, waiver, notice
or other communication given or made by the Borrower, or given
to the Borrower, in its capacity as agent in accordance with
paragraph (a) of this Clause 31.7, in connection with this
Agreement shall be binding for all purposes on such Obligors
as if the other Obligors had expressly made, given or
concurred with the same. In the event of any conflict between
any notices or other communications of the Borrower and any
other Obligor, those of the Borrower shall prevail.
31.8 Use of Websites
(a) The Borrower may satisfy its obligation under this Agreement
to deliver any information in relation to those Lenders (the
"Website Lenders") who accept this method of communication by
posting this information onto an electronic website designated
by the Borrower and the Agent (the "Designated Website") if:
(i) the Agent expressly agrees (after consultation with
each of the Lenders) that it will accept communication
of the information by this method;
(ii) both the Borrower and the Agent are aware of the
address of and any relevant password specifications
for the Designated Website; and
(iii) the information is in a format previously agreed
between the Borrower and the Agent.
If any Lender (a "Paper Form Lender") does not agree to the
delivery of information electronically then the Agent shall
notify the Borrower accordingly and the Borrower shall supply
the information to the Agent in paper form. In any event the
Borrower shall supply the Agent with at least one copy in
paper form of any information required to be provided by it.
(b) The Agent shall supply each Website Lender with the address of
and any relevant password specifications for the Designated
Website following designation of that website by the Borrower
and the Agent.
(c) The Borrower shall promptly upon becoming aware of its
occurrence notify the Agent if:
(i) the Designated Website cannot be accessed due to
technical failure;
(ii) the password specifications for the Designated Website
change;
(iii) any new information which is required to be provided
under this Agreement is posted onto the Designated
Website;
(iv) any existing information which has been provided under
this Agreement and posted onto the Designated Website
is amended; or
(v) the Borrower becomes aware that the Designated Website
or any information posted onto the Designated Website
is or has been infected by any electronic virus or
similar software.
If the Borrower notifies the Agent under paragraph (c)(i) or
paragraph (c)(v) above, all information to be provided by the
Borrower under this Agreement after the date of that notice
shall be supplied in paper form unless and until the Agent and
each Website Lender is satisfied that the circumstances giving
rise to the notification are no longer continuing.
(d) Any Website Lender may request, through the Agent, one paper
copy of any information required to be provided under this
Agreement which is posted onto the Designated Website. The
Borrower shall comply with any such request within ten
Business Days.
32. CALCULATIONS AND CERTIFICATES
32.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters
to which they relate.
32.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest
error, conclusive evidence of the matters to which it relates.
32.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days, or where the interest,
commission or fee is to accrue in respect of any amount denominated in
sterling, 365 days or, in any case where the practice in the Relevant
Interbank Market differs, in accordance with that market practice.
32.4 No personal liability
If an individual signs a certificate on behalf of any member of the
Group and the certificate proves to be incorrect, the individual will
incur no personal liability as a result, unless the individual acted
fraudulently in giving the certificate. In this case any liability of
the individual will be determined in accordance with applicable law.
33. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law or
regulation of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions nor the legality, validity
or enforceability of such provision under the laws or regulations of
any other jurisdiction will in any way be affected or impaired.
34. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of
any Finance Party, any right or remedy under the Finance Documents
shall operate as a waiver, nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. The rights and remedies
provided in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law or regulation.
35. AMENDMENTS AND WAIVERS
35.1 Required consents
(a) Subject to Clause 35.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of
the Majority Lenders and the Borrower and any such amendment
or waiver will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
(c) The Borrower may effect, as agent of each Obligor, any
amendment or waiver permitted by this Clause 35.
35.2 Exceptions
(a) An amendment or waiver that has the effect of changing or
which relates to:
(i) the definition of "Majority Lenders", "Optional
Currency" or "Certain Funds Period" in Clause 1.1
(Definitions);
(ii) an extension to the date of payment of any scheduled
payment of any amount under the Finance Documents;
(iii) a reduction in the Margin or a reduction in the amount
of any payment of principal, interest, fees or
commission payable;
(iv) a change in currency of payment of any amount under
the Finance Documents;
(v) an increase in or an extension of any Commitment;
(vi) a change to the Borrower or any of the Guarantors
other than in accordance with Clause 25 (Changes to
the Obligors);
(vii) any provision which expressly requires the consent of
all the Lenders; or
(viii) Clause 2.2 (Finance Parties' rights and obligations),
Clause 19 (Guarantee and Indemnity), Clause 24
(Changes to the Lenders), Clause 25 (Changes to the
Obligors) or this Clause 35,
shall not be made without the prior consent of all the
Lenders.
(b) An amendment or waiver which relates to the rights or
obligations of the Agent or the Arranger, may not be effected
without the consent of the Agent or the Arranger at such time.
36. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts,
and this has the same effect as if the signatures on the counterparts
were on a single copy of the Finance Document.
SECTION 12
GOVERNING LAW AND ENFORCEMENT
37. GOVERNING LAW
37.1 This Agreement is governed by English law.
37.2 If the Borrower or any of the Original Guarantors is represented by an
attorney or attorneys in connection with the signing and/or execution
and/or delivery of this Agreement or any agreement or document
referred to herein or made pursuant hereto and the relevant power or
powers of attorney is or are expressed to be governed by the laws and
regulations of a particular jurisdiction, it is hereby expressly
acknowledged and accepted by the other parties hereto that such laws
and regulations shall govern the existence and extent of such
attorney's or attorney's authority and the effects of the exercise
thereof.
38. ENFORCEMENT
38.1 Jurisdiction of English Courts
(a) Each of the parties hereto irrevocably submits to the
jurisdiction of the courts of England and to the jurisdiction
of the courts of its own domicile with respect to any action
initiated against it, to settle any dispute arising out of or
in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this
Agreement) (a "Dispute").
(b) the Parties agree that such courts are the most appropriate
and convenient courts to settle Disputes and accordingly no
Party will argue to the contrary.
(c) To the extent allowed by law or regulation, the Finance
Parties may take proceedings related to a Dispute in any other
courts with jurisdiction or concurrent proceedings in any
number of jurisdictions.
38.2 Service of process
Without prejudice to any other mode of service allowed under any
relevant law or regulation, each Obligor (other than an Obligor
incorporated in England and Wales):
(a) irrevocably appoints the Process Agent as its agent for
service of process in relation to any proceedings before the
English courts in connection with any Finance Document and
Bidco by its execution of this Agreement accepts that
appointment; and
(b) agrees that failure by the Process Agent to notify the
relevant Obligor of the process will not invalidate the
proceedings concerned.
This Agreement has been entered into on the date stated at the beginning of
this Agreement.
SCHEDULE 1
THE ORIGINAL PARTIES
Part I
The Original Obligors
Part IA
Name of Borrower Registration number (or equivalent, if
any)
New Sunward Holding B.V. 34133556
Address for delivery of Notices:
Amsteldijk 166,
1079LH Amsterdam,
The Netherlands
Tel: (31) 20 642-2048
Fax: (31) 20 644-4095
Attn: Managing Director(s)
Part IB
Name of Original Guarantors Registration numbers (or equivalent, if
any)
CEMEX, S.A. de C.V. numero 21, folios 157 a 186 vuelta,
volumen 16, Libro No. 3, Segundo
Auxiliar Escrituras de Sociedades
Mercantiles, Seccion de Comercio, 11
de junio de 1920, Registro Publico de
la Propiedad y del Comercio de
Monterrey, Nuevo Leon
Address for delivery of Notices:
Ave. Ricardo Margain Zozaya #325
Col. Valle del Campestre
San Pedro Garza Garcia, N.L.
Mexico, 66265
Tel: (52 81) 8888-4115
Fax: (52 81) 8888-4415
Attn: Humberto Lozano
Cemex Mexico, S.A. de C.V. numero 55, folio 127, volumen 186,
Libro No. 3, Segundo Auxiliar
Escrituras de Sociedades Mercantiles,
Seccion de Comercio, 23 de agosto de
1968, Registro Publico de la
Propiedad y del Comercio de
Monterrey, Nuevo Leon
Address for delivery of Notices:
Ave. Ricardo Margain Zozaya #325
Col. Valle del Campestre
San Pedro Garza , N.L.
Mexico, 66265
Tel: (52 81) 8888-4115
Fax: (52 81) 8888-4415
Attn: Humberto Lozano
Empresas Tolteca de Mexico, S.A. de C.V. Numero 1508, folio 241, volumen 321,
Libro No. 3, Segundo Auxiliar
Escrituras de Sociedades Mercantiles,
Seccion de Comercio, 22 de septiembre
de 1989, Registro Publico de la
Propiedad y del Comercio de
Monterrey, Nuevo Leon
Address for delivery of Notices:
Ave. Ricardo Margain Zozaya # 325
Col. Valle del Campestre
San Pedro Garza Garcia, N.L.
Mexico 66265
Tel: (52 81) 8888-4115
Fax: (52 81) 8888-4415
Attn: Humberto Lozano
Part II
The Original Lenders
- ------------------------------------------------------------------------------
Name of Original Lender Facility B1 Facility B2
Commitment Commitment
US$ US$
- ------------------------------------------------------------------------------
Citibank, N.A. 250,000,000 375,000,000
Goldman Sachs Credit Partners L.P. 250,000,000 375,000,000
- ------------------------------------------------------------------------------
TOTALS 500,000,000 750,000,000
- ------------------------------------------------------------------------------
SCHEDULE 2
CONDITIONS PRECEDENT
Part I
Conditions Precedent to initial Utilisation
1. Obligors
(a) A copy of the current constitutional documents of each Obligor
including copies certified by one director of the relevant
company below of:
(i) the akte van oprichting and statuten of the Borrower
and a copy of the extract from the trade register of
Chamber of Commerce of Amsterdam;
(ii) the estatutos sociales in effect on the First
Utilisation Date of each Guarantor; and
(iii) the power-of-attorney of each Person executing any
Finance Document on behalf of any Obligor, together
with specimen signatures of such Person.
(b) A power of attorney granting a specific individual or
individuals sufficient power to sign the Finance Documents on
behalf of each Original Obligor and in relation to the
Borrower and Cemex Parent, a copy of a resolution of the board
of directors of the Borrower and Cemex Parent:
(i) approving the terms of, and the transactions
contemplated by, the Finance Documents to which it is
a party and resolving that it execute the Finance
Documents to which it is a party;
(ii) authorising a specified person or persons to execute
the Finance Documents to which it is a party on its
behalf; and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents and
notices (including, if relevant, any Utilisation
Request) to be signed and/or despatched by it under or
in connection with the Finance Documents to which it
is a party.
(c) A specimen of the signature of each person authorised by the
resolution or power of attorney referred to in paragraph (b)
above in relation to the Finance Documents.
(d) A certificate of each of the Obligors (signed by an Authorised
Signatory) confirming that borrowing or guaranteeing, as
appropriate, the Total Commitments would not cause any
borrowing, guarantee, security or similar limit binding on any
Obligor to be exceeded.
(e) A certificate of an Authorised Signatory of the relevant
Obligor certifying that each copy document relating to it
specified in this Part I of Schedule 2 is correct, complete
and in full force and effect as at a date no earlier than the
date of this Agreement.
2. Legal opinions
(a) A legal opinion from Clifford Chance LLP, legal advisers to
the Arranger and the Agent in England, as to English law
substantially in the form distributed to the Original Lenders
prior to signing this Agreement satisfactory to the Lenders.
(b) An opinion with respect to the laws and regulations of The
Netherlands from Warendorf, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(c) An opinion with respect to the laws and regulations of Mexico
from Ritch, Heather & Mueller, S.C., substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(d) An opinion from in-house counsel of the Borrower,
substantially in the form distributed to the Original Lenders
prior to signing the Agreement.
3. Other documents and evidence
(a) A copy of this Agreement, duly executed and delivered by each
Party.
(b) A copy of the Notes evidencing the Loans to be made on the
First Utilisation Date, executed and delivered by the Borrower
and each Guarantor, in favour of each Lender.
(c) The Funds Flow Statement
(d) A copy of the Syndication and Fees Letter and the Sub
Underwriter Fee Letter executed by all parties thereto.
(e) True and current copies of:
(i) audited consolidated financial statements of each of
Cemex Parent and its Subsidiaries and Cemex Spain and
its Subsidiaries for the 2003 fiscal year;
(ii) audited unconsolidated financial statements of the
Borrower and each Guarantor other than Cemex Parent
for the 2003 fiscal year; and
(iii) unaudited unconsolidated interim financial statements
of the Borrower and each Guarantor other than Cemex
Parent for the quarter ended 30 June 2004.
Part II
Conditions Precedent required to be delivered by an Additional Guarantor
1. Obligors
(a) An Accession Letter, duly executed by the Additional Guarantor
and the Borrower.
(b) A copy of the constitutional documents of the Additional
Guarantor.
(c) A copy of a resolution of the board of directors of the
Additional Guarantor:
(i) approving the terms of, and the transactions
contemplated by, the Accession Letter and this
Agreement and resolving that it execute the Accession
Letter;
(ii) authorising a specified person or persons to execute
the Accession Letter on its behalf; and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents and
notices (including, if relevant, any Utilisation
Request) to be signed and/or despatched by it under or
in connection with this Agreement.
(d) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (c) above.
(e) Should the legal advisers of the Lenders consider it
advisable, a copy of a resolution signed by all the holders of
the issued shares of the Additional Guarantor, approving the
terms of, and the transactions contemplated by, the Finance
Documents to which the Additional Guarantor is a party.
(f) A certificate of the Additional Guarantor (signed by an
Authorised Signatory) confirming that guaranteeing the Total
Commitments would not cause any guaranteeing or similar limit
binding on it to be exceeded.
(g) A certificate of an Authorised Signatory of the Additional
Guarantor certifying that each copy document listed in this
Part II of Schedule 2 is correct, complete and in full force
and effect as at a date no earlier than the date of the
Accession Letter.
2. Legal opinions
(a) A legal opinion of the legal advisers to the Additional
Guarantor in form and substance reasonably satisfactory to the
legal advisers of the Lenders.
(b) A legal opinion of Clifford Chance, or other firm that can
opine for the Additional Guarantor if not Clifford Chance,
legal advisers to the Lenders.
3. Other documents and evidence
(a) Evidence that any process agent referred to in Clause 38.2
(Service of process) has accepted its appointment.
(b) A copy of any other Authorisation or other document, opinion
or assurance which the Agent considers (after having taken
appropriate legal advice) to be necessary or desirable (if it
has notified the Additional Guarantor and the Borrower
accordingly) in connection with the entry into and performance
of the transactions contemplated by any Finance Document or
for the validity and enforceability of any Finance Document.
(c) The Original Financial Statements of the Additional Guarantor.
SCHEDULE 3
REQUESTS
Part I
Utilisation Request
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
Cemex - $1,250,000,000 Term and Revolving Facilities Agreement
dated __________ 2004 (the "Agreement")
1. We refer to the Agreement. This is a Utilisation Request. Terms
defined in the Agreement have the same meaning in this Utilisation
Request unless given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a
Business Day, the next Business
Day)
Facility to be utilised: [Facility B1]/[Facility B2]*
Currency of Loan: [ ]
Amount: [ ] or, if less, the
Available Facility
Interest Period: [ ]
3. We confirm that, to the extent applicable, each condition specified in
Clause 4.2 (Further conditions precedent) is satisfied or waived on
the date of this Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
6. Terms used in this Utilisation Request which are not defined in this
Utilisation Request but are defined in the Agreement shall have the
meaning given to those terms in the Agreement.
Yours faithfully
------------------------
authorised signatory for
[New Sunward Holding B.V.]
NOTES:
* delete as appropriate
Part II
Selection Notice
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
Cemex - $1,250,000,000 Term and Revolving Facilities Agreement
dated __________ 2004 (the "Agreement")
1. We refer to the Agreement. This is a Selection Notice. Terms defined
in the Agreement have the same meaning in this Selection Notice unless
given a different meaning in this Selection Notice.
2. We refer to the Facility B2 Loan with an Interest Period ending on [ ].
3. [We request that the above Facility B2 Loan be divided into [O] term
loans with the following Interest Periods:]
or
[We request that the next Interest Period for the Facility B2 Loan
is [ ].]
4. This Selection Notice is irrevocable.
5. Terms used in this Selection Notice which are not defined in this
Selection Notice but are defined in the Agreement shall have the
meaning given to those terms in the Agreement.
Yours faithfully
------------------------
authorised signatory for
[New Sunward Holding B.V.]
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the
Bank of England and/or the Financial Services Authority (or, in either
case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate
(the "Additional Cost Rate") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per
annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by
that Lender to the Agent. This percentage will be certified by that
Lender in its notice to the Agent to be its reasonable determination
of the cost (expressed as a percentage of that Lender's participation
in all Loans made from that Facility Office) of complying with the
minimum reserve requirements of the European Central Bank in respect
of loans made from that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan:
AB + C(B - D) + E x 0.01
------------------------ per cent. per annum.
100 - (A + C)
(b) in relation to a Loan in any currency other than sterling:
E x 0.01
-------- per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which that Lender is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is the percentage rate of interest (excluding the Margin and
the Mandatory Cost and, if the Loan is an Unpaid Sum, the
additional rate of interest specified in paragraph (a) of
Clause 10.3 (Default interest)) payable for the relevant
Interest Period on the Loan.
C is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of
England to the Agent on interest bearing Special Deposits.
E is designed to compensate Lenders for amounts payable under
the Fees Rules and is calculated by the Agent as being the
average of the most recent rates of charge supplied by the
Reference Banks to the Agent pursuant to paragraph 6 below and
expressed in pounds per (pound)1,000,000.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the
meanings given to them from time to time under or pursuant to
the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England;
(b) "Fees Rules" means the rules on periodic fees contained in the
FSA Supervision Manual or such other law or regulation as may
be in force from time to time in respect of the payment of
fees for the acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees
Rules under the activity group A.1 Deposit acceptors (ignoring
any minimum fee or zero rated fee required pursuant to the
Fees Rules but taking into account any applicable discount
rate); and
(d) "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included
in the formulae as percentages (i.e. 5 per cent. will be included in
the formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority,
supply to the Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being
the average of the Fee Tariffs applicable to that Reference Bank for
that financial year) and expressed in pounds per (pound)1,000,000 of
the Tariff Base of that Reference Bank.
8. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information
on or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require
for such purpose.
Each Lender shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and
the rates of charge of each Reference Bank for the purpose of E above
shall be determined by the Agent based upon the information supplied
to it pursuant to paragraphs 7 and 8 above and on the assumption that,
unless a Lender notifies the Agent to the contrary, each Lender's
obligations in relation to cash ratio deposits and Special Deposits
are the same as those of a typical bank from its jurisdiction of
incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
10. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided
by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8
above is true and correct in all respects.
11. The Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each
Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.
12. Any determination by the Agent pursuant to this Schedule in relation
to a formula, the Mandatory Cost, an Additional Cost Rate or any
amount payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
13. The Agent may from time to time, after consultation with the Borrower
and the Lenders, determine and if so requested by any Lender, notify
to all Parties any amendments which are required by such Lender to be
made to this Schedule in order to comply with any change in law or
regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central
Bank (or, in any case, any other authority which replaces all or any
of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all Parties.
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: [Agent]
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (
the "New Lender")
Dated:
Cemex - $1,250,000,000 Term and Revolving Facilities Agreement
dated __________ 2004 (the "Agreement")
1. We refer to the Agreement. This is a Transfer Certificate. Terms
defined in the Agreement have the same meaning in this Transfer
Certificate unless given a different meaning in this Transfer
Certificate.
2. We refer to Clause 24.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing
Lender transferring to the New Lender by novation all or part
of the Existing Lender's Commitment, rights and obligations
referred to in the schedule to this certificate in accordance
with Clause 24.5 (Procedure for transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention
details for notices of the New Lender for the purposes of
Clause 31.2 (Addresses) are set out in the schedule to this
certificate.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 24.4
(Limitation of responsibility of Existing Lenders).
4. This Transfer Certificate may be executed in any number of
counterparts and this has the same effect as if the signatures on the
counterparts were on a single copy of this Transfer Certificate.
5. We confirm that we have carried out and are satisfied with the results
of all compliance checks we consider necessary in relation to our
participation in the Facilities.
6. This Transfer Certificate is governed by English law.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, email, fax number and attention details for notices
and account details for payments,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [o].
[Agent]
SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: [Agent]
From: [Borrower]
Dated:
Dear Sirs
Cemex - $1,250,000,000 Term and Revolving Facilities Agreement
dated __________ 2004 (the "Agreement")
1. We refer to the Agreement. This is a Compliance Certificate. Terms
defined in the Agreement have the same meaning when used in this
Compliance Certificate unless given a different meaning in this
Compliance Certificate.
2. We confirm that:
(a) Pursuant to Clause 22.12 (Financial condition covenants) the
financial condition of the Group as of [ ] evidenced by the
consolidated financial statements for the financial
year/first half/second half of the financial year then ended
comply with the following conditions:
[o]
(b) As at the date of this Certificate the following
Subsidiaries of the Group fall within the definition of
Material Subsidiaries as set out in Clause 1.1
(Definitions):
3. We confirm that no Default is continuing.
Signed:
------------------------------
Authorised Signatory of New Sunward Holding B.V.
SCHEDULE 7
FORM OF LMA CONFIDENTIALITY UNDERTAKING
[Letterhead of Existing Bank]
To:
=========================================
[insert name of Potential Lender]
=========================================
Re: The Facility
=========================================
Borrower:
Date:
Amount:
Agent:
=========================================
Dear Sirs
We understand that you are considering participating in the Facility. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
1. Confidentiality Undertaking
(a) You undertake to keep the Confidential Information
confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the
Confidential Information is protected with security measures
and a degree of care that would apply to your own confidential
information;
(b) to keep confidential and not disclose to anyone the fact that
the Confidential Information has been made available or that
discussions or negotiations are taking place or have taken
place between us in connection with the Facility;
(c) to use the Confidential Information only for the Permitted
Purpose;
(d) to use all reasonable endeavours to ensure that any person to
whom you pass any Confidential Information (unless disclosed
under paragraph 2(b) below) acknowledges and complies with the
provisions of this letter as if that person were also a party
to it, and
(e) not to make enquiries of any member of the Group or any of
their officers, directors, employees or professional advisers
relating directly or indirectly to the Facility.
2. Permitted Disclosure
We agree that you may disclose Confidential Information:
(a) to members of the Participant Group and their officers,
directors, employees and professional advisers to the extent
necessary for the Permitted Purpose and to any auditors of
members of the Participant Group;
(b) (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where required by the
rules of any stock exchange on which the shares or other
securities of any member of the Participant Group are listed
or (iii) where required by the laws or regulations of any
country with jurisdiction over the affairs of any member of
the Participant Group;
(c) with the prior written consent of us and the Borrower.
3. Notification of Required or Unauthorised Disclosure
You agree (to the extent permitted by law) to inform us of the full
circumstances of any disclosure under paragraph 2(b)3 or upon becoming
aware that Confidential Information has been disclosed in breach of
this letter.
4. Return of Copies
If we so request in writing, you shall return all Confidential
Information supplied to you by us and destroy or permanently erase all
copies of Confidential Information made by you and use all reasonable
endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such
Confidential Information and any copies made by them, in each case
save to the extent that you or the recipients are required to retain
any such Confidential Information by any applicable law, rule or
regulation or by any competent judicial, governmental, supervisory or
regulatory body or in accordance with internal policy, or where the
Confidential Information has been disclosed under paragraph 2(b)3
above.
5. Continuing Obligations
The obligations in this letter are continuing and, in particular,
shall survive the termination of any discussions or negotiations
between you and us. Notwithstanding the previous sentence, the
obligations in this letter shall cease (a) if you become a party to or
otherwise acquire (by assignment or sub-participation) an interest,
direct or indirect, in the Facility or (b) twelve months after you
have returned all Confidential Information supplied to you by us and
destroyed or permanently erased all copies of Confidential Information
made by you (other than any such Confidential Information or copies
which have been disclosed under paragraph 2 above (other than
sub-paragraph 2(a)) or which, pursuant to paragraph 4 above, are not
required to be returned or destroyed).
6. No Representation; Consequences of Breach, etc.
You acknowledge and agree that:
(a) neither we, [nor our principal] nor any member of the Group
nor any of our or their respective officers, employees or
advisers (each a "Relevant Person") (i) make any
representation or warranty, express or implied, as to, or
assume any responsibility for, the accuracy, reliability or
completeness of any of the Confidential Information or any
other information supplied by us or any member of the Group or
the assumptions on which it is based or (ii) shall be under
any obligation to update or correct any inaccuracy in the
Confidential Information or any other information supplied by
us or any member of the Group or be otherwise liable to you or
any other person in respect to the Confidential Information or
any such information; and
(b) we [or our principal] or members of the Group may be
irreparably harmed by the breach of the terms of this letter
and damages may not be an adequate remedy; each Relevant
Person may be granted an injunction or specific performance
for any threatened or actual breach of the provisions of this
letter by you.
7. No Waiver; Amendments, etc.
This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject
of this letter. No failure or delay in exercising any right, power or
privilege hereunder will operate as a waiver thereof nor will any
single or partial exercise of any right, power or privilege preclude
any further exercise thereof or the exercise of any other right, power
or privileges hereunder. The terms of this letter and your obligations
hereunder may only be amended or modified by written agreement between
us.
8. Inside Information
You acknowledge that some or all of the Confidential Information is or
may be price-sensitive information and that the use of such
information may be regulated or prohibited by applicable legislation
relating to insider dealing and you undertake not to use any
Confidential Information for any unlawful purpose.
9. No Front Running
(a) You agree that until primary syndication of the Facility has
been completed and allocations released, you will not, and
will procure that no other member of the Participation Group
will:
(i) undertake any Front Running;
(ii) enter into (or agree to enter into) any agreement with
any bank, financial institution or other third party
which to your knowledge may be approached to become a
syndicate member, under which that bank, financial
institution or other third party shares any risk or
participates in any exposure of any Lender under the
Facility; or
(iii) offer to make any payment or other compensation of any
kind to any bank, financial institution or third party
for its participation (direct or indirect) in the
Facility.
(b) Neither you nor any other member of the Participant Group has
engaged in any Front Running:
(i) if you or any other member of the Participant Group
engages in any Front Running before the close of
primary syndication we may suffer loss or damage and
your position in future financings with us and the
Borrower may be prejudiced; and
(ii) if you or any other member of the Participant Group
engages in any Front Running before the close of
primary syndication we retain the right not to
allocate to you a commitment under the Facility.
For the purpose "Front Running" means the process of:
(c) communicating with any bank, financial institution or third
party which, to its knowledge, may be approached to become a
syndicate member with a view of encouraging, or with the
result that such bank or financial institution is encouraged,
to await the secondary market in respect of participation in
the Facility; and/or
(d) actually making a price (generally or to a specific bank,
financial institution or third party) in respect of a
participation in the Facility.
10. Nature of Undertakings
The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also
given for the benefit of [our principal,]4 the Borrower and each other
member of the Group.
11. Third Party Rights
(a) Subject to paragraph 6 and paragraph 9 the terms of this
letter may be enforced and relied upon only by you and us and
the operation of the Contracts (Rights of Third Parties) Act
1999 (the "Third Parties Act") is excluded.
(b) Notwithstanding any provisions of this letter, any Relevant
Person or any member of the Group may enjoy the benefit of the
terms of paragraphs 6 and 9 subject to and in accordance with
this paragraph 10 and the provisions of the Third Parties Act.
(c) The parties to this letter do not require the consent of the
Relevant Persons to rescind or vary this letter at any time.
12. Governing Law and Jurisdiction
(a) This letter (including the agreement constituted by your
acknowledgement of its terms) is governed by English law.
(b) The parties submit to the non-exclusive jurisdiction of the
English courts.
13. Definitions
In this letter (including the acknowledgement set out below) terms
defined in the Agreement shall, unless the context otherwise requires,
have the same meaning and:
"Confidential Information" means any information relating to the
Borrower, the Group, the Agreement and the Facility including, without
limitation, the information memorandum, provided to you by us or any
of our affiliates or advisers, in whatever form, and includes
information given orally and any document, electronic file or any
other way of representing or recording information which contains or
is derived or copied from such information but excludes information
that (a) is or becomes public knowledge other than as a direct or
indirect result of any breach of this letter or (b) is known by you
before the date the information is disclosed to you by us or any of
our affiliates or advisers or is lawfully obtained by you thereafter,
other than from a source which is connected with the Group and which,
in either case, as far as you are aware, has not been obtained in
violation of, and is not otherwise subject to, any obligation of
confidentiality;
"Group" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as
each such term is defined in the Companies Act 1985);
"Participant Group" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985; and
"Permitted Purpose" means considering and evaluating whether to enter
into the Facility.
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
- -----------------------
For and on behalf of
[Existing Lender]
To: [Existing Lender]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
- ---------------------------
For and on behalf of
[Potential New Lender]
SCHEDULE 8
TIMETABLE
Loans in euro or dollars Loans in sterling
Agent notifies the Borrower if a currency - -
is approved as an Optional Currency in
accordance with Clause 4.4 (Conditions
relating to Optional Currencies)
Delivery of a duly completed Utilisation U-3 U-1
Request (Clause 5.1 (Delivery of a
Utilisation Request)) or a Selection Notice 11.00am 11.00am
(Clause 11.1 (Selection of Interest
Periods))
Agent determines (in relation to a U-3 U-1
Utilisation) the Base Currency Amount of
the Loan, if required under paragraph (c) 3.00pm 3.00pm
of Clause 5.4 (Lenders' participation) and
notifies the Lenders of the Loan in
accordance with Clause 5.4 (Lenders'
participation)
Agent receives a notification from a Lender U-2 U
under Clause 6.2 (Unavailability of a
currency) 9.30am 9.30am
Agent gives notice in accordance with U- 2 U
Clause 6.2 (Unavailability of a
currency) 10.30am 10.30am
LIBOR or EURIBOR is fixed Quotation Day as of 11:00 Quotation Day as of
a.m. London time in respect 11:00 a.m.
of LIBOR and as of 11.00
a.m. Brussels time in
respect of EURIBOR
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
SCHEDULE 9
FORM OF ACCESSION LETTER
To: [Agent ]
From: [Borrower]
Dated:
Dear Sirs
Cemex - $1,250,000,000 Term and Revolving Facilities Agreement
dated __________ 2004 (the "Agreement")
1. [Additional Guarantor] agrees to become an Additional Guarantor and to
be bound by the terms of the Facility Agreement as an Additional
Guarantor pursuant to Clause 25 (Changes to the Obligors) of the
Facility Agreement. [Additional Guarantor] is a company duly
incorporated under the laws and regulations of [name of relevant
jurisdiction].
2. [Additional Guarantor's] administrative details are as follows:
Address:
Fax No:
Attention:
3. This Accession Letter is governed by English law and is entered into by
deed.
Signed: Signed:
---------------------------- -----------------------------
[Authorised Signatory of Additional [Authorised Signatory of New Sunward
Guarantor] Holding BV]
[ o ]
SCHEDULE 10
PERMITTED LIENS
(Figures in millions of US Dollars)
- ------------------------- ---------------------------------------- -----------
COMPANY LENDER LIEN CONCEPT BALANCE
- ------------------------- ---------------------------------------- -----------
CEMEX Construction GE Capital (FKIT Equipment related 1.035
Materials, L.P. 279,280) with the Credit
CEMEX Construction Hampton Land related with the 0.277
Materials, L.P. Credit
Kosmos Cement First Corp (FKIT Equipment related 0.029
Company 101649) with the Credit
Mineral Resource Met-South, Inc. Ash storage 0.203
Technologies, Inc.
Centro Distribuidor de Bank of America Cash Collateral 2.100
Cemento, S.A. De C.V.
-----------
3.644
SCHEDULE 11
FORM OF PROMISSORY NOTE
Part I
FORM OF TRANCHE B1 NOTE
PROMISSORY NOTE PAGARE
US$__________________ US$__________________
For value received, the undersigned, NEW SUNWARD Por valor recibido, la suscrita NEW SUNWARD
HOLDING B.V. (the "Borrower"), by this Promissory HOLDING B.V. (el "Deudor"), por este Pagare
Note unconditionally promises to pay to the order of promete incondicionalmente pagar a la orden de
________________, the principal sum of _________________ , la suma principal de
[US$]/[euro]/[insert currency]* __________________ US$/[euro]/[incluir moneda]*__________
(__________________________, [currency of the United (______________, [moneda de los Estados Unidos de
States of America,]/[currency of a member state of America,]/ [moneda de un estado miembro que la
the European Union adopted in accordance with the Union Europea ha adoptado de conformidad con la
legislation relating to the Economic and Monetary legislacion respecto a la Union Economica y
Union]/[other - please describe]* ___/100) on Monetaria]/[otra - por favor describir]* ___/100)
_____________ _____, 20__, (the "Maturity Date"), el ____ de __________ del 20__ (la "Fecha de
provided that if such day is not a Business Day, the Vencimiento"), en el entendido que si dicho dia no
Maturity Date shall be the next succeeding Business es un Dia Habil, la Fecha de Vencimiento sera en
Day unless such next succeeding Business Day would el siguiente Dia Habil salvo que dicho siguiente
fall in the next calendar month, in which case the Dia Habil sea del siguiente mes del calendario, en
Maturity Date shall be the immediately preceding cuyo caso la Fecha de Vencimiento sera el Dia
Business Day. Habil inmediato anterior.
The Borrower further promises to pay interest on the El Deudor asimismo promete pagar intereses
principal amount outstanding hereunder for each day ordinarios sobre la suma principal insoluta
during each Interest Period (as hereinafter defined) conforme al presente Pagare por cada dia durante
at a rate per annum equal to the Screen Rate (as cada Periodo de Intereses (segun dicho termino se
hereinafter defined) for such Interest Period plus define mas adelante) a una tasa de interes anual
[0.825%] [(zero point eight two five per cent.)]. equivalente a la Tasa de Pantalla (segun dicho
Interest shall be payable on the Maturity Date. termino se define mas adelante) para dicho Periodo
de Intereses mas [0.825%] [(cero punto ochocientos
veinticinco por ciento)]. Los intereses seran
pagaderos en la Fecha de Vencimiento.
The Borrower also promises to pay, to the fullest El Deudor tambien promete pagar, en la medida
extent permitted by applicable law, default interest permitida por la legislacion aplicable, intereses
on any amount payable hereunder that is not paid when moratorios sobre cualesquiera cantidades pagaderas
due, payable on demand, at a rate per annum equal to conforme al presente y que no fueren pagadas a su
the Screen Rate then in effect plus [0.825]% (zero vencimiento, pagaderos a la vista, a una tasa de
point eight two five per cent.) plus 2.00% (two point interes anual equivalente a la Tasa de Pantalla
zero per cent.). aplicable mas [0.825]% [(cero punto ochocientos
veinticinco por ciento)] mas 2.00% (dos punto cero
por ciento).
All computations of interest hereunder shall be made Todos los intereses pagaderos conforme al presente
on the basis of a year of 360 days for the actual Pagare seran calculados sobre la base de un ano de
number of days elapsed in the period for which any 360 dias por el numero de dias efectivamente
such interest is payable (including the first day but transcurridos durante el periodo en el cual dichos
excluding the last day). intereses sean pagaderos (incluyendo el primer dia
pero excluyendo el ultimo dia).
All payments to be made on or in respect of this Todos los pagos que deban hacerse conforme al
Promissory Note shall be made not later than 10:00 presente Pagare deberan hacerse antes de las 10:00
a.m., London time, to the account number __________, a.m., hora de Londres, a la cuenta numero _______,
ABA number _____________, Ref.:_______________ in ABA numero _______________, Ref.: _______ del
__________________, maintained by the Agent (as Agente (segun dicho termino se define mas
hereinafter defined), in [Dollars]/[euro]/[insert adelante), en [Dolares] /[euro]/[incluir moneda]*
currency]* and in immediately available funds. en fondos inmediatamente disponibles.
All payments hereunder shall be made free and clear Todos los pagos conforme al presente Pagare, se
of, and without deduction or withholding for or on haran libres de, y sin deduccion o retencion por o
account of, any present or future taxes, levies, a cuenta de, cualesquier impuestos, derechos,
imposts, duties, charges, fees, deductions or cargos, gravamenes, contribuciones, deducciones o
withholdings, now or hereafter imposed, levied, retenciones, presentes o futuros que sean
collected, withheld or assessed by any Governmental establecidos, cobrados, retenidos o impuestos por
Authority (as hereinafter defined) ("Taxes"). If any cualquier Autoridad Gubernamental (segun dicho
Taxes are required to be deducted or withheld from termino se define mas adelante) ("Impuestos"). En
any amounts payable hereunder, the amounts so payable el caso que se deba de realizar cualquier
to the holder hereof shall be increased to the extent deduccion o retencion por Impuestos respecto de
necessary so that the holder hereof receives all the cualquier pago a realizarse conforme al presente
amount it would have received had no such deduction Pagare, las cantidades pagaderas conforme al
or withholding been made. presente se incrementaran en la medida que sea
necesario para que el tenedor reciba las
cantidades que hubiera recibido de no haberse
realizado dicha deduccion o retencion.
The undersigned agree to reimburse upon demand, in Las suscritas convienen en rembolsar a la vista,
like manner and funds, all losses, costs and en la misma forma y fondos, cualesquier perdidas,
reasonable expenses of the holder hereof, if any, costos y gastos razonables del tenedor de este
incurred in connection with the enforcement of this Pagare, si los hubiere, incurridos en relacion con
Promissory Note (including, without limitation, all la exigibilidad de este Pagare (incluyendo, sin
reasonable legal costs and expenses). limitacion, todos los costos y gastos legales
razonables).
For purposes of this Note, the following terms shall Para efectos de este Pagare, los siguientes
have the following meanings: terminos tendran los siguientes significados:
"Agent" means Citibank International plc "Agente " significa Citibank International plc.
"Business Day" means a [day (other than a Saturday or "Dia Habil" significa cualquier [dia (distinto de
Sunday) on which banks are open for general business un Sabado o Domingo) en el que los bancos esten
in London, England and in Amsterdam, The abiertos para celebrar operaciones en Londres,
Netherlands.]/[TARGET Day]* Inglaterra y Amsterdam, Holanda.]/ [Dia TARGET]*
["TARGET" means Trans-European Automated Real-time ["TARGET" significa es sistema de pagos Automatico
Gross Settlement Express Transfer payment system. en Tiempo Real con Compensacion Total Express
Trans- Europeo (Trans-European Automated Real-time
Gross Settlement Express Transfer).
"TARGET Day" means any day on which TARGET is open ["Dia TARGET" significa un dia en el cual TARGET
for the settlement of payments in euro.]** abra para celebrar operaciones de pago y
compensaciones en euros.]
"Interest Payment Date" means the last day of each "Fecha de Pago de Intereses" significa el ultimo
Interest Period. dia de cada Periodo de Intereses.
"Interest Period" means the period commencing on the "Periodo de Intereses" significa, el periodo que
execution date of this Promissory Note and ending on inicia en la fecha de firma de este Pagare y
the Maturity Date. termina en la Fecha de Vencimiento.
"Screen Rate" means, with respect to each day during "Tasa de Pantalla " significa, respecto de cada
each Interest Period, the rate per annum (rounded dia durante cada Periodo de Intereses, la tasa
upward, if necessary, to the next 1/100th of 1%) anual (redondeada hacia arriba, de ser necesario,
determined on the basis of [the rate determined by al 1/100 mas cercano de 1%) que se determine con
the Banking Federation of the European Union]**/[the base en [la tasa determinada por la Federacion
British Bankers' Association Interest Settlement Bancaria (Banking Federation) de la Union
Rate]*** for a period equal to such Interest Period Europea]** / [la Tasa de Interes de Liquidacion de
appearing on the relevant page of the Reuters screen la Asociacion Britanica de Banqueros (British
as of 11:00 A.M., London time, two Business Days Bankers' Association Interest Settlement Rate)]***
prior to the beginning of such Interest Period. In para un periodo equivalente a dicho Periodo de
the event that such rate does not appear on the Intereses que aparezca en la correspondiente
Reuters screen, the "Screen Rate" shall be the pagina de Reuters a las 11:00 a.m., hora de
arithmetic mean of the rates (rounded upwards to four Londres, dos Dias Habiles antes del inicio de
decimal places) as supplied to the Agent at its dicho Periodo de Intereses. En caso de que dicha
request quoted by the Reference Banks (as hereinafter tasa no aparezca en la pantalla Reuters, la "Tasa
defined) to leading banks in the London interbank de Pantalla" sera el promedio aritmetico
market for the offering of deposits in Dollars for a (redondeado hacia arriba a cuatro decimales) de
period comparable to such Interest Period at or about las tasas notificadas al Agente que ofrezcan los
11:00 A.M., London time, two Business Days prior to Bancos de Referencia (segun dicho termino se
the beginning of such Interest Period. define mas adelante) a los bancos principales en
el mercado interbancario de Londres para depositos
en Dolares con vencimiento comparable a dicho
Periodo de Intereses, a las o alrededor de las
11:00 a.m., hora de Londres, dos Dias Habiles
antes del inicio de dicho Periodo de Intereses.
"Governmental Authority" means any foreign or "Autoridad Gubernamental" significa cualquier
domestic branch of power or government or any state, agencia gubernamental, o que ejerza actos de poder
department or other political subdivision thereof, or o cualquier estado, departamento o cualquier
any foreign or domestic governmental body, agency, subdivision politica de los mismos, ya sea
authority (including any central bank or taxing nacional o extranjero, o cualquier cuerpo
authority), any entity or instrumentality (including gubernamental, agencia, autoridad (incluyendo
any court or tribunal) exercising, or asserting cualquier banco central o autoridad fiscal),
jurisdiction to exercise, executive, legislative, nacional o extranjero, cualquier entidad o
judicial, regulatory or administrative functions of instrumentalidad (incluyendo cualquier corte o
or pertaining to government. tribunal) que ejerza, o tenga jurisdiccion para
ejercer, funciones ejecutivas, legislativas,
judiciales, regulatorias, administrativas o de
gobierno.
"Reference Banks" means the principal London offices "Bancos de Referencia" significa las oficinas
of Citibank, N.A. and __________. principales en Londres de Citibank, N.A. y
_________________.
This Promissory Note shall in all respects be Este Pagare se regira e interpretara de
governed by, and construed in accordance with, the conformidad con las leyes de Inglaterra, en el
laws of England, provided however, that if any action entendido que, si cualquier accion o procedimiento
or proceeding in connection with this Promissory Note en relacion con el presente Pagare es iniciado
shall be brought in any courts in the United Mexican ante cualquier tribunal de los Estados Unidos
States, this Promissory Note shall be governed by the Mexicanos, el presente Pagare se regira por las
laws of United Mexican States. leyes de los Estados Unidos Mexicanos.
Any legal action or proceeding arising out of or Cualquier accion o procedimiento legal relacionado
relating to this Promissory Note may be brought, in con o derivado del presente Pagare podra ser
the competent courts of England, or in the courts iniciado ante los tribunales competentes de
located in the City of Mexico, Federal District, Inglaterra o en los tribunales ubicados en la
United Mexican States. The undersigned waive the Ciudad de Mexico, Distrito Federal, Estados Unidos
jurisdiction of any other courts that may correspond Mexicanos. Las suscritas renuncian a la
for any other reason. jurisdiccion de cualesquiera otros tribunales que
pudiere corresponderles por cualquier otra razon.
The undersigned hereby waive diligence, presentment, Las suscritas por medio del presente renuncian a
protest or notice of total or partial non-payment or todo requisito de presentacion, protesto o
dishonor with respect to this Promissory Note. notificacion de incumplimiento total o parcial, o
cualquier otro requisito similar con respecto al
presente Pagare.
This Promissory Note has been executed in both El presente Pagare se firma en ingles y en
English and Spanish versions, both of which shall espanol, obligando ambas versiones a las
bind the undersigned; provided, however, that the suscritas, en el entendido que la version en
English version shall be controlling, except in any ingles prevalecera, excepto en el caso de que se
action, suit or proceeding brought in the courts of inicie cualquier accion, demanda o procedimiento
the United Mexican States, in which case the Spanish ante los tribunales de los Estados Unidos
version shall be controlling. Mexicanos, en cuyo caso la version en espanol
prevalecera.
This Promissory Note consists of ____ pages. Este Pagare consta de ____ paginas.
, [LUGAR DE FIRMA] a de de 2004.
------------- ----- -------------
[PLACE OF EXECUTION] , 2004.
---------- ------------------- ------
NEW SUNWARD HOLDING B.V.
-----------------------------------
By/Por:
----------------------------
Title/Cargo: Attorney-in-Fact/Apoderado
GUARANTORS
POR AVAL
CEMEX, S.A. DE C.V.
-----------------------------------
By/Por:
----------------------------
Title/Cargo: Attorney-in-Fact/Apoderado
CEMEX, S.A. DE C.V.
-----------------------------------
By/Por:
----------------------------
Title/Cargo: Attorney-in-Fact/Apoderado
EMPRESAS TOLTECA DE MEXICO, S.A. DE C.V.
-----------------------------------
By/Por:
----------------------------
Title/Cargo: Attorney-in-Fact/Apoderado
Part II
FORM OF TRANCHE B2 NOTE
PROMISSORY NOTE PAGARE
US$__________________ US$__________________
For value received, the undersigned, NEW SUNWARD Por valor recibido, la suscrita NEW SUNWARD
HOLDING B.V. (the "Borrower"), by this Promissory HOLDING B.V. (el "Deudor"), por este Pagare
Note unconditionally promises to pay to the order of promete incondicionalmente pagar a la orden de
________________, the principal sum of _________________ , la suma principal de
[US$]/[euro]/[insert currency]* __________________ [US$]/[euro]/[incluir moneda]*__________
(__________________________, [currency of the United (______________, [moneda de los Estados Unidos de
States of America,]/[currency of a member state of America,]/[moneda de un estado miembro que la
the European Union adopted in accordance with the Union Europea ha adoptado de conformidad con la
legislation relating to the Economic and Monetary legislacion respecto a la Union Economica y
Union]/[other - please describe]*___/100) on Monetaria]/[otra - por favor describir]* ___/100)
_____________ _____, 20__, (the "Maturity Date"), el ____ de __________ del 20__ (la "Fecha de
provided that if such day is not a Business Day, the Vencimiento"), en el entendido que si dicho dia no
Maturity Date shall be the next succeeding Business es un Dia Habil, la Fecha de Vencimiento sera en
Day unless such next succeeding Business Day would el siguiente Dia Habil salvo que dicho siguiente
fall in the next calendar month, in which case the Dia Habil sea del siguiente mes del calendario, en
Maturity Date shall be the immediately preceding cuyo caso la Fecha de Vencimiento sera el Dia
Business Day. Habil inmediato anterior.
The Borrower further promises to pay interest on the El Deudor asimismo promete pagar intereses
principal amount outstanding hereunder for each day ordinarios sobre la suma principal insoluta
during each Interest Period (as hereinafter defined) conforme al presente Pagare por cada dia durante
at a rate per annum equal to the Screen Rate (as cada Periodo de Intereses (segun dicho termino se
hereinafter defined) for such Interest Period plus define mas adelante) a una tasa de interes anual
[0.925%] [(zero point nine two five per cent.)]. equivalente a la Tasa de Pantalla (segun dicho
Interest shall be payable on each Interest Payment termino se define mas adelante) para dicho Periodo
Date (as hereinafter defined). de Intereses mas [0.925]% [(cero punto novecientos
veinticinco por ciento)]. Los intereses seran
pagaderos en forma vencida, en la Fecha de Pago de
Intereses (segun dicho termino se define mas
adelante).
The Borrower also promises to pay, to the fullest El Deudor tambien promete pagar, en la medida
extent permitted by applicable law, default interest permitida por la legislacion aplicable, intereses
on any amount payable hereunder that is not paid when moratorios sobre cualesquiera cantidades pagaderas
due, payable on demand, at a rate per annum equal to conforme al presente y que no fueren pagadas a su
the Screen Rate then in effect plus [0.925]% [(zero vencimiento, pagaderos a la vista, a una tasa de
point nine two five per cent.)] plus 2.00% (two point interes anual equivalente a la Tasa de Pantalla
zero per cent.). aplicable mas [0.925]% [(cero punto novecientos
veinticinco por ciento)] mas 2.00% (dos punto cero
por ciento).
All computations of interest hereunder shall be made Todos los intereses pagaderos conforme al presente
on the basis of a year of 360 days for the actual Pagare seran calculados sobre la base de un ano de
number of days elapsed in the period for which any 360 dias por el numero de dias efectivamente
such interest is payable (including the first day but transcurridos durante el periodo en el cual dichos
excluding the last day). intereses sean pagaderos (incluyendo el primer dia
pero excluyendo el ultimo dia).
All payments to be made on or in respect of this Todos los pagos que deban hacerse conforme al
Promissory Note shall be made not later than 10:00 presente Pagare deberan hacerse antes de las 10:00
a.m., London time, to the account number __________, a.m., hora de Londres, a la cuenta numero _______,
ABA number _____________, Ref.:_______________ in ABA numero _______________, Ref.: _______ del
__________________, maintained by the Agent (as Agente (segun dicho termino se define mas
hereinafter defined), in [Dollars]/[euro]/[insert adelante), en Dolares en fondos inmediatamente
currency]* and in immediately available funds. disponibles.
All payments hereunder shall be made free and clear Todos los pagos conforme al presente Pagare, se
of, and without deduction or withholding for or on haran libres de, y sin deduccion o retencion por o
account of, any present or future taxes, levies, a cuenta de, cualesquier impuestos, derechos,
imposts, duties, charges, fees, deductions or cargos, gravamenes, contribuciones, deducciones o
withholdings, now or hereafter imposed, levied, retenciones, presentes o futuros que sean
collected, withheld or assessed by any Governmental establecidos, cobrados, retenidos o impuestos por
Authority (as hereinafter defined) ("Taxes"). If any cualquier Autoridad Gubernamental (segun dicho
Taxes are required to be deducted or withheld from termino se define mas adelante) ("Impuestos"). En
any amounts payable hereunder, the amounts so payable el caso que se deba de realizar cualquier
to the holder hereof shall be increased to the extent deduccion o retencion por Impuestos respecto de
necessary so that the holder hereof receives all the cualquier pago a realizarse conforme al presente
amount it would have received had no such deduction Pagare, las cantidades pagaderas conforme al
or withholding been made. presente se incrementaran en la medida que sea
necesario para que el tenedor reciba las
cantidades que hubiera recibido de no haberse
realizado dicha deduccion o retencion.
The undersigned agree to reimburse upon demand, in Las suscritas convienen en rembolsar a la vista,
like manner and funds, all losses, costs and en la misma forma y fondos, cualesquier perdidas,
reasonable expenses of the holder hereof, if any, costos y gastos razonables del tenedor de este
incurred in connection with the enforcement of this Pagare, si los hubiere, incurridos en relacion con
Promissory Note (including, without limitation, all la exigibilidad de este Pagare (incluyendo, sin
reasonable legal costs and expenses). limitacion, todos los costos y gastos legales
razonables).
For purposes of this Note, the following terms shall Para efectos de este Pagare, los siguientes
have the following meanings: terminos tendran los siguientes significados:
"Agent" means Citibank International plc "Agente " significa Citibank International plc.
"Business Day" means a [day (other than a Saturday or "Dia Habil" significa cualquier [dia (distinto de
Sunday) on which banks are open for general business un Sabado o Domingo) en el que los bancos esten
in London, England and in Amsterdam, The abiertos para celebrar operaciones en Londres,
Netherlands.]/[TARGET Day]* Inglaterra y Amsterdam, Holanda.]/[Dia TARGET]*
["TARGET" means Trans-European Automated Real-time ["TARGET" significa es sistema de pagos Automatico
Gross Settlement Express Transfer payment system. en Tiempo Real con Compensacion Total Express
Trans- Europeo (Trans-European Automated Real-time
Gross Settlement Express Transfer).
"TARGET Day" means any day on which TARGET is open ["Dia TARGET" significa un dia en el cual TARGET
for the settlement of payments in euro.]** abra para celebrar operaciones de pago y
compensaciones en euros.]
"Interest Payment Date" means the last day of each "Fecha de Pago de Intereses" significa el ultimo
Interest Period. dia de cada Periodo de Intereses.
"Interest Period" shall mean, the period commencing "Periodo de Intereses" significa, el periodo que
on the execution date of this Promissory Note and inicia en la fecha de firma de este Pagare y
ending [one] [two] [three] [six] months thereafter termina [uno] [tres] [seis] meses despues y los
and thereafter, each period commencing on the last siguientes periodos comenzaran el ultimo dia del
day of the immediately preceding Interest Period and Periodo de Intereses inmediato anterior y
ending [one] [two] [three] [six] months thereafter; terminaran [uno] [tres] [seis] meses despues; en
provided that (i)-if any Interest Period would el entendido que (i)-si cualquier Periodo de
otherwise end on a day that is not a Business Day, Intereses de otra manera terminaria en un dia que
such Interest Period shall be extended to the next no se un Dia Habil, dicho Periodo de Intereses
succeeding Business Day unless such extension would sera extendido al siguiente Dia Habil, salvo que
carry such Interest Period into another calendar dicha extension mandaria dicho Periodo de
month, in which event such Interest Period shall end Intereses a un nuevo mes calendario, en cuyo caso
on the immediately preceding Business Day; (ii)-no dicho Periodo de Intereses terminara en el Dia
Interest Period shall extend beyond the Maturity Habil inmediato anterior; (ii)-ningun Periodo de
Date; and (iii)-any Interest Period that begins on Intereses se extendera mas alla de la Fecha de
the last Business Day of a calendar month (or on a Vencimiento; y (iii)-cualquier Periodo de
day for which there is no numerically corresponding Intereses que comience en el ultimo Dia Habil de
day in the calendar month at the end of such Interest un mes calendario (o en un dia para el cual no
Period) shall end on the last Business Day of a haya un dia numericamente correspondiente en el
calendar month. mes calendario en que termine dicho Periodo de
Intereses) terminara en el ultimo Dia Habil de un
mes calendario.
"Screen Rate" means, with respect to each day during "Tasa de Pantalla " significa, respecto de cada
each Interest Period, the rate per annum (rounded dia durante cada Periodo de Intereses, la tasa
upward, if necessary, to the next 1/100th of 1%) anual (redondeada hacia arriba, de ser necesario,
determined on the basis of [the rate determined by al 1/100 mas cercano de 1%) que se determine con
the Banking Federation of the European Union]**/[the base en [la tasa determinada por la Federacion
British Bankers' Association Interest Settlement Bancaria (Banking Federation) de la Union
Rate]*** for a period equal to such Interest Period Europea]** / [la Tasa de Interes de Liquidacion de
appearing on the relevant page of the Reuters screen la Asociacion Britanica de Banqueros (British
as of 11:00 A.M., London time, two Business Days Bankers' Association Interest Settlement Rate)]
prior to the beginning of such Interest Period. In *** para un periodo equivalente a dicho Periodo de
the event that such rate does not appear on the Intereses que aparezca en la correspondiente
Reuters screen, the "Screen Rate" shall be the pagina de Reuters a las 11:00 a.m., hora de
arithmetic mean of the rates (rounded upwards to four Londres, dos Dias Habiles antes del inicio de
decimal places) as supplied to the Agent at its dicho Periodo de Intereses. En caso de que dicha
request quoted by the Reference Banks (as hereinafter tasa no aparezca en la pantalla Reuters, la "Tasa
defined) to leading banks in the London interbank de Pantalla" sera el promedio aritmetico
market for the offering of deposits in Dollars for a (redondeado hacia arriba a cuatro decimales) de
period comparable to such Interest Period at or about las tasas notificadas al Agente que ofrezcan los
11:00 A.M., London time, two Business Days prior to Bancos de Referencia (segun dicho termino se
the beginning of such Interest Period. define mas adelante) a los bancos principales en
el mercado interbancario de Londres para depositos
en Dolares con vencimiento comparable a dicho
Periodo de Intereses, a las o alrededor de las
11:00 a.m., hora de Londres, dos Dias Habiles
antes del inicio de dicho Periodo de Intereses.
"Governmental Authority" means any foreign or "Autoridad Gubernamental" significa cualquier
domestic branch of power or government or any state, agencia gubernamental, o que ejerza actos de poder
department or other political subdivision thereof, or o cualquier estado, departamento o cualquier
any foreign or domestic governmental body, agency, subdivision politica de los mismos, ya sea
authority (including any central bank or taxing nacional o extranjero, o cualquier cuerpo
authority), any entity or instrumentality (including gubernamental, agencia, autoridad (incluyendo
any court or tribunal) exercising, or asserting cualquier banco central o autoridad fiscal),
jurisdiction to exercise, executive, legislative, nacional o extranjero, cualquier entidad o
judicial, regulatory or administrative functions of instrumentalidad (incluyendo cualquier corte o
or pertaining to government. tribunal) que ejerza, o tenga jurisdiccion para
ejercer, funciones ejecutivas, legislativas,
judiciales, regulatorias, administrativas o de
gobierno.
"Reference Banks" means the principal London offices "Bancos de Referencia" significa las oficinas
of Citibank, N.A. and __________. principales en Londres de Citibank, N.A. y
_________________.
This Promissory Note shall in all respects be Este Pagare se regira e interpretara de
governed by, and construed in accordance with, the conformidad con las leyes de Inglaterra, en el
laws of England, provided however, that if any action entendido que, si cualquier accion o procedimiento
or proceeding in connection with this Promissory Note en relacion con el presente Pagare es iniciado
shall be brought in any courts in the United Mexican ante cualquier tribunal de los Estados Unidos
States, this Promissory Note shall be governed by the Mexicanos, el presente Pagare se regira por las
laws of United Mexican States. leyes de los Estados Unidos Mexicanos.
Any legal action or proceeding arising out of or Cualquier accion o procedimiento legal relacionado
relating to this Promissory Note may be brought, in con o derivado del presente Pagare podra ser
the competent courts of England, or in the courts iniciado ante los tribunales competentes de
located in the City of Mexico, Federal District, Inglaterra o en los tribunales ubicados en la
United Mexican States. The undersigned waive the Ciudad de Mexico, Distrito Federal, Estados Unidos
jurisdiction of any other courts that may correspond Mexicanos. Las suscritas renuncian a la
for any other reason. jurisdiccion de cualesquiera otros tribunales que
pudiere corresponderles por cualquier otra razon.
The undersigned hereby waive diligence, presentment, Las suscritas por medio del presente renuncian a
protest or notice of total or partial non-payment or todo requisito de presentacion, protesto o
dishonor with respect to this Promissory Note. notificacion de incumplimiento total o parcial, o
cualquier otro requisito similar con respecto al
presente Pagare.
This Promissory Note has been executed in both El presente Pagare se firma en ingles y en
English and Spanish versions, both of which shall espanol, obligando ambas versiones a las
bind the undersigned; provided, however, that the suscritas, en el entendido que la version en
English version shall be controlling, except in any ingles prevalecera, excepto en el caso de que se
action, suit or proceeding brought in the courts of inicie cualquier accion, demanda o procedimiento
the United Mexican States, in which case the Spanish ante los tribunales de los Estados Unidos
version shall be controlling. Mexicanos, en cuyo caso la version en espanol
prevalecera.
This Promissory Note consists of ____ pages. Este Pagare consta de ____ paginas.
, [LUGAR DE FIRMA] a de de 2004.
------------- ----- -------------
[PLACE OF EXECUTION] , 2004.
---------- ------------------- ------
NEW SUNWARD HOLDING B.V.
-----------------------------------
By/Por:
----------------------------
Title/Cargo: Attorney-in-Fact/Apoderado
GUARANTORS
POR AVAL
CEMEX, S.A. DE C.V.
-----------------------------------
By/Por:
----------------------------
Title/Cargo: Attorney-in-Fact/Apoderado
CEMEX, S.A. DE C.V.
-----------------------------------
By/Por:
----------------------------
Title/Cargo: Attorney-in-Fact/Apoderado
EMPRESAS TOLTECA DE MEXICO, S.A. DE C.V.
-----------------------------------
By/Por:
----------------------------
Title/Cargo: Attorney-in-Fact/Apoderado
SIGNATURES
THE BORROWER
NEW SUNWARD HOLDING B.V.
By: /s/ RAMIRO VILLARREAL MORALES
Address: Amsteldijk 166
1079LH Amsterdam
The Netherlands
Fax: (31) 20 644-4095
Attention: Managing Director(s)
THE ORIGINAL GUARANTORS
CEMEX, S.A. DE C.V.
By: /s/ RAMIRO VILLARREAL MORALES
Address: Ave. Ricardo Margain Zozaya # 325
Col. Valle del Campestre
San Pedro Garza Garcia, N.L.
Mexico 66265
Fax: (52 81) 8888-4415
Attention: Humberto Lozano
CEMEX MEXICO, S.A. DE C.V.
By: /s/ RAMIRO VILLARREAL MORALES
Address: Ave. Ricardo Margain Zozaya # 325
Col. Valle del Campestre
San Pedro Garza Garcia, N.L.
Mexico 66265
Fax: (52 81) 8888-4415
Attention: Humberto Lozano
EMPRESAS TOLTECA DE MEXICO, S.A. DE C.V.
By: /s/ RAMIRO VILLARREAL MORALES
Address: Ave. Ricardo Margain Zozaya # 325
Col. Valle del Campestre
San Pedro Garza Garcia, N.L.
Mexico 66265
Fax: (52 81) 8888-4415
Attention: Humberto Lozano
THE AGENT
CITIBANK INTERNATIONAL PLC
By: /s/ CARLOS BARONA
Address: Loans Agency Office, 2nd Floor
4 Harbour Exchange Square
London E14 9GE
Fax: 00 44 208636 3824/3925
Attention: Ian Hayton
THE ARRANGER
CITIGROUP GLOBAL MARKETS LIMITED
By: /s/ CARLOS BARONA
Address: Citigroup Centre, 33 Canada Square, Canary Wharf,
London E14 5LB
Fax: +44 20 7986 8278
GOLDMAN SACHS INTERNATIONAL
By: /s/ JAVIER LAZARO
Address: Peterborough Court, 133 Fleet Street, London EC4A 2BB
Fax: 0044 (20) 7774 4477
Attention: Javier Lazaro
THE ORIGINAL LENDERS
CITIBANK, N.A.
By: /s/ CARLOS BARONA
Address: Citigroup Centre, 33 Canada Square, Canary Wharf
London E14 5LB
Fax: +44 20 7986 8278
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ JAVIER LAZARO
Address: 85 Broad Street, New York, NY 10004, United States of America
Fax: +44 (20) 7774 4477