EXHIBIT 4.17
C L I F F O R D CONFORMED COPY
C H A N C E
US$3,800,000,000
FACILITIES AGREEMENT
dated 24 September 2004
for
CEMEX ESPANA, S.A.
as Borrower
CEMEX ESPANA, S.A.
CEMEX CARACAS INVESTMENTS B.V.
CEMEX CARACAS II INVESTMENTS B.V.
CEMEX EGYPTIAN INVESTMENTS B.V.
CEMEX MANILA INVESTMENTS B.V.
CEMEX AMERICAN HOLDINGS B.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.......................................1
2. The Facilities......................................................22
3. Purpose.............................................................23
4. Conditions Of Utilisation...........................................24
5. Utilisation.........................................................27
6. Optional Currencies.................................................28
7. Repayment...........................................................29
8. Conversion Of Facility C1...........................................29
9. Prepayment And Cancellation.........................................30
10. Interest............................................................34
11. Interest Periods....................................................35
12. Changes To The Calculation Of Interest..............................36
13. Fees................................................................37
14. Tax Gross Up And Indemnities........................................39
15. Increased Costs.....................................................42
16. Other Indemnities...................................................43
17. Mitigation By The Lenders...........................................45
18. Costs And Expenses..................................................46
19. Guarantee And Indemnity.............................................47
20. Representations.....................................................50
21. Information Undertakings............................................54
22. Financial Covenants.................................................57
23. General Undertakings................................................60
24. Events Of Default...................................................72
25. Changes To The Lenders..............................................76
26. Changes To The Obligors.............................................79
27. Role Of The Agent And The Arranger..................................82
28. Conduct Of Business By The Finance Parties..........................87
29. Sharing Among The Finance Parties...................................87
30. Payment Mechanics...................................................90
31. Set-Off.............................................................92
32. Notices.............................................................92
33. Calculations And Certificates.......................................96
34. Partial Invalidity..................................................97
35. Remedies And Waivers................................................97
36. Amendments And Waivers..............................................97
37. Counterparts........................................................98
38. Governing Law.......................................................99
39. Enforcement.........................................................99
Schedule 1 100
Part I The Obligors.................................................100
Part Ii The Original Lenders........................................101
Schedule 2 CONDITIONS PRECEDENT............................................102
Part I Conditions Precedent To Initial Utilisation..................102
Part Ii Conditions Precedent Required To Be Delivered By An
Additional Obligor..................................................105
Schedule 3 REQUESTS 107
Part I A Utilisation Request........................................107
Part Ii Selection Notice............................................109
Schedule 4 MANDATORY COST FORMULAE.........................................110
Schedule 5 FORM OF TRANSFER CERTIFICATE....................................113
Schedule 6 FORM OF ACCESSION LETTER........................................115
Schedule 7 FORM OF COMPLIANCE CERTIFICATE..................................116
Schedule 8 TIMETABLES......................................................118
Schedule 9 FORM OF LMA CONFIDENTIALITY UNDERTAKING.........................119
Schedule 10 EXISTING SECURITY..............................................124
Schedule 11 EXISTING NOTARISATIONS.........................................125
Schedule 12 MATERIAL SUBSIDIARIES..........................................126
THIS TERM AND REVOLVING FACILITIES AGREEMENT is dated 24 September 2004 and made
BETWEEN:
(1) CEMEX ESPANA, S.A. (the "Original Borrower" or the "Company");
(2) THE COMPANIES listed in Part I 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 Lenders) 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 6 (Form of Accession Letter).
"Acquisition Utilisation" means a Term Loan made or to be made for one
or more of the purposes set out in Clause 3.1(b) (Purpose) (other than
paragraphs (v) and (vi) thereof).
"Additional Cost Rate" has the meaning given to it in Schedule 4
(Mandatory Cost Formulae).
"Additional Borrower" means a company which becomes an Additional
Borrower in accordance with Clause 26 (Changes to the Obligors).
"Additional Guarantor" means a company which becomes an Additional
Guarantor in accordance with Clause 26 (Changes to the Obligors).
"Additional Obligor" means an Additional Borrower or an Additional
Guarantor.
"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.
"Asia Fund" means Cemex Asia Holdings Ltd. ("CAH") or any other
vehicles used by the Company or any other member of the Group to
invest, or finance investments already made, in companies involved in
or assets dedicated to the cement, concrete or aggregates business in
Asia in both cases, such company or vehicle, as applicable, with
committed third parties with minority interests other than members of
the Group or CEMEX, S.A. de C.V. and its Subsidiaries and with the
Company maintaining control of its management.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"Authorised Signatory" means, in relation to any Obligor, any person
who is duly authorised and in respect of whom the Agent has received a
certificate signed by a director or another Authorised Signatory of
such Obligor setting out the name and signature of such person and
confirming such person's authority to act.
"Availability Period" means the period from and including the date of
this Agreement to and including:
(a) the Termination Date in respect of Facility C1; and.
(b) the day which is 180 days after the date of the posting of the
first Offer Document, in the case of Facility C2 or Facility
C3
"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 C1
only, any participation in Facility C1 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 Company 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 Cemex
Holdco incorporated in England and Wales with company number 05196131
and having its registered office at 2 Lambs Passage, London EC1Y 8BB.
"Borrowers" means the Original Borrower and any Additional Borrower
and "Borrower" means any of them.
"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 Madrid, 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" means any lease that is capitalised on the balance
sheet prepared in accordance with Spanish GAAP.
"Cemex Facility B Agreement" means the US$1,250,000,000 multicurrency
term and revolving credit agreement made between (among others) Cemex
Holdco as borrower and Citigroup Global Markets Limited and Goldman
Sachs International on or about the date hereof.
"Cemex Holdco" means New Sunward Holding B.V., a company incorporated
in The Netherlands with registered number 34133556.
"Cemex Holdco B Facilities" means the Facilities made available to
Cemex Holdco pursuant to the Cemex Facility B Agreement.
"Cemex Parent" means CEMEX, S.A. de C.V., a company (sociedad anonima
de capital variable) incorporated in Mexico.
"Cemex Parent A Facilities" means both, the US$500,000,000 A1 term
loan facility agreement and the Mexican Peso 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.
"Certain Funds Period" means the period commencing on the date of this
Agreement and ending on the earlier of:
(a) the date on which the Offer lapses or is withdrawn by the
Bidco;
(b) the date on which the European Commission initiates Phase II
Proceedings or the Offer is referred to the UK Competition
Commission (where such date occurs before 3.00 p.m. on the
first closing date of the Offer or the date on which the Offer
becomes or is declared unconditional as to acceptances,
whichever is the later);
(c) the date which falls 180 days after the date of the posting of
the Offer Document;
(d) the date which falls 90 days after the Unconditional Date;
(e) the date falling four Months after the date on which the Offer
Document is despatched if, by that date, Bidco has not given a
Section 429 Notice;
(f) the date falling 8 weeks after the first date on which the
Bidco is entitled to give a Section 429 Notice; or
(g) the date falling 14 days after the Scheme Effective Date.
"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 C1 Commitment, a Facility C2 Commitment,
and/or Facility C3 Commitment.
"Company/Bidco Intercompany Loan" means a loan to be made directly or
indirectly by the Company to Bidco under the Company/Bidco
Intercompany Loan Agreement.
"Company/Bidco Intercompany Loan Agreement" means the loan agreement
in the agreed form to be entered into between the Company or any of
its direct or indirect subsidiaries and Bidco on or before the first
Utilisation after the Unconditional Date, pursuant to which all
proceeds of the Facilities will be on-lent by the Company to Bidco.
"Compliance Certificate" means a certificate substantially in the form
set out in Schedule 7 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule
9 (Form of LMA Confidentiality Undertaking) or in any other form
agreed between the Company and the Agent.
"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
Company, Cemex Holdco and Cemex Parent.
"Default" means an Event of Default or any event or circumstance
specified in Clause 24 (Events of Default) which would (with the
expiry of a grace period , the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"Domestic Lender" means any person described in paragraph (c) of
article 57 of Royal Decree 537/1997, of 14 April (Real Decreto
537/1997 de 14 de abril) as amended by Royal Decree 2717/1998, of 18
December (Real Decreto 2717/1998, de 18 de diciembre) or in the second
paragraph of article 12.1 of Royal Decree 326/1999, of 26 February
(Real Decreto 326/1999, de 26 de febrero).
"Environmental Claim" means any claim, proceeding or investigation by
any person in respect of any Environmental Law.
"Environmental Law" means any applicable law or regulation in any
jurisdiction in which any member of the Group conducts business which
relates to the pollution or protection of the environment or harm to
or the protection of human health or the health of animals or plants.
"Environmental Permits" means any permit, licence, consent, approval
and other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of
the business of any member of the Group conducted on or from the
properties owned or used by the relevant member of the Group.
"ERISA" means the United States Employee Retirement Income Security
Act of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of
that Loan) the 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 24 (Events of Default).
"Facility" means Facility C1, Facility C2 or Facility C3.
"Facility C1" 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 C1 Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility C1
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility C1 Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility C1 Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility C1 Loan" means a loan made or to be made under Facility C1
or the principal amount outstanding for the time being of that loan.
"Facility C2" means the multicurrency term loan facility made
available under this Agreement as described in paragraph (b) of Clause
2.1 (The Facilities).
"Facility C2 Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility C2
Commitment" in Part II of Schedule 1 (The Original Lenders)
and the amount of any other Facility C2 Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility C2 Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility C2 Loan" means a loan made or to be made under Facility C2
or the principal amount outstanding for the time being of that loan.
"Facility C3" means the multicurrency term loan facility made
available under this Agreement as described in paragraph (c) of Clause
2.1 (The Facilities).
"Facility C3 Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility C3
Commitment" in Part II of Schedule 1 (The Original Lenders)
and the amount of any other Facility C3 Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility C3 Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility C3 First Repayment Date" means the date falling 42 months
after the date of this Agreement.
"Facility C3 Loan" means a loan made or to be made under Facility C3
or the principal amount outstanding for the time being of that loan.
"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.
"Final C1 Termination Date" means, in relation to Facility C1, a date
which is 364 days after the Termination Date relating thereto.
"Finance Document" means this Agreement, any Accession Letter, the
Syndication and Fees Letter, the Sub Underwriter Fees Letter, the
Costs and Expenses Letter and any other document designated as a
"Finance Document" by the Agent and the Company.
"Finance Party" means the Agent, the Arranger or a Lender.
"Financial Indebtedness" means any indebtedness for or in respect of,
and without double counting:
(a) moneys borrowed (including, but not limited to, any amount
raised by acceptance under any acceptance credit facility and
receivables sold or discounted on a recourse basis (it being
understood that Permitted Securitisations shall be deemed not
to be on a recourse basis));
(b) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(c) the amount of any liability in respect of any lease or hire
purchase contract that would, in accordance with Spanish GAAP,
be treated as a Capital Lease;
(d) the deferred purchase price of assets or the deferred payment
of services, except trade accounts payable in the ordinary
course of business;
(e) obligations of a person under repurchase agreements for the
stock issued by such person or another person;
(f) obligations of a person with respect to product invoices
incurred in connection with exporting financing;
(g) all Financial Indebtedness of others secured by Security on
any asset of a person, regardless of whether such Financial
Indebtedness is assumed by such person in an amount equal to
the lower of (i) the net book value of such asset and (ii) the
amount secured thereby; and
(h) guarantees of Financial Indebtedness of other persons.
"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).
"GAAP" means, in relation to an Obligor, the generally accepted
accounting principles applying to it (i) in the country of its
incorporation; or (ii) in a jurisdiction agreed to by the Agent.
"Group" means the Company and each of its Subsidiaries for the time
being.
"Guarantors" means the Original Guarantors and any Additional
Guarantor other than any Original Guarantor or Additional Guarantor
which has ceased to be a Guarantor pursuant to Clause 26.4
(Resignation of Guarantor) and has not subsequently become an
Additional Guarantor pursuant to Clause 26.3 (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 Company (and as updated from time to time with the approval of the
Company) concerning Cemex Parent, the Group and the Target Group
which, at the request of the Company and on its behalf is to be
prepared in relation to the transaction contemplated by this
Agreement, approved by the Company and distributed by the Arranger in
connection with the syndication of the Facilities.
"Intellectual Property" means:
(a) any patents, trade marks, service marks, designs, business
names, copyrights, design rights, data-base rights,
inventions, knowhow and other intellectual property rights and
interests, whether registered or unregistered; and
(b) the benefit of all applications and rights to use such assets
of each member of the Group.
"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.
"Legal Opinions" means the legal opinions delivered to the Agent
pursuant to Clause 4.1 (Initial Conditions Precedent) or in relation
to any Additional Obligors.
"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 25 (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.
"LMA" means the Loan Market Association.
"Loan" means a Facility C1 Loan or a Term 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 Company 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 a Borrower or Bidco to apply the
proceeds of an Acquisition Utilisation for the purposes for which it
was advanced, Clauses 23.6 (Negative Pledge) (other than any breach in
respect of a judgment lien), 23.7 (Disposals) (other than any breach
arising from a downgrade in the Rating of the Company), 23.8 (Merger)
(other than any breach arising from a downgrade in the Rating of the
Company), 23.14 (Pari Passu Ranking) or 23.18 (The Offer).
"Major Default" means (a) any outstanding Event of Default in respect
of the Company 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 Clauses
24.1 (Non-payment), 24.3 (Other obligations) only in relation to a
Major Breach, 24.4 (Misrepresentation) only in relation to a Major
Representation, 24.6 (Insolvency), 24.7 (Insolvency proceedings),
24.11 (Unlawfulness) or 24.12 (Repudiation); or (b) any failure by the
Company to comply with the requirements of Clause 4.1 (Initial
Conditions Precedent) (other than paragraphs 4(a), (b), (c) and 6(e)
of Part I of Schedule 2).
"Major Representation" means in respect of the Company 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 Clause 20.1 (Status) to Clause 20.4 (Power and authority)
(inclusive) and 20.14 (Offer Documents Information) where, in each
case, breach would lead to a Material Adverse Effect.
"Majority Lenders" means:
(a) for the purposes of paragraph (b)(i) of Clause 23.16 (The
Offer) only, a Lender or Lenders whose Commitments aggregate
more than 66 per cent. of the Total Commitments (or, if the
Total Commitments have been reduced to zero, aggregated more
than 66 per cent. of the Total Commitments immediately prior
to that reduction);
(b) if there are no Loans then outstanding a Lender or Lenders
whose Commitments aggregate more than 51 per cent. of the
Total Commitments (or, if the Total Commitments have been
reduced to zero, aggregated more than 51 per cent. of the
Total Commitments immediately prior to that reduction); and
(c) 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 C1 0.65
----------------------- -----------------------
Facility C2 0.75
----------------------- -----------------------
Facility C3 0.85
----------------------- -----------------------
(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,
(c) 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 Net Borrowings to Adjusted EBITDA 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 will be the
percentage rate per annum set out below opposite that range:
--------------------------- ------------------------------------
Net Borrowings to Margin
Adjusted EBITDA % p.a.
--------------------------- ------------ ----------- -----------
Facility Facility Facility
C1 C2 C3
--------------------------- ------------ ----------- -----------
Greater than or equal to 0.85 0.95 1.05
3.0:1
--------------------------- ------------ ----------- -----------
Less than 3.0:1 but 0.65 0.75 0.85
greater than or equal to
2.5:1
--------------------------- ------------ ----------- -----------
Less than 2.5:1 but 0.50 0.60 0.70
greater than or equal to
2.0:1
--------------------------- ------------ ----------- -----------
Less than 2.0:1 0.40 0.50 0.60
--------------------------- ------------ ----------- -----------
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. For the purpose of determining the Margin, Net
Borrowings to Adjusted EBITDA ratio and Relevant Period shall
be determined in accordance with Clause 22.1 (Financial
definitions).
"Material Adverse Effect" means a material adverse effect on:
(a) the business, condition (financial or otherwise) or operations
of the Group taken as a whole;
(b) the rights or remedies of any Finance Party under the Finance
Documents; or
(c) the ability of any Obligor to perform its obligations under
the Finance Documents.
"Material Subsidiary" means those companies set out in Schedule 13
(Material Subsidiaries) and any other Subsidiary of the Company:
(a) which becomes a Subsidiary of the Company after the date
hereof or acquires substantial assets or businesses after the
date hereof; and
(b) which:
(i) has total assets representing 5 per cent. or more of
the total consolidated assets of the Group; and/or
(ii) has revenues representing 5 per cent. or more of the
consolidated turnover of the Group,
in each case calculated on a consolidated basis and any Holding
Company of any such Subsidiary (save unless such company is already a
Guarantor hereunder).
Compliance with the conditions set out in paragraphs (a) and (b) shall
be determined by reference to the most recent Compliance Certificate
supplied by the Company and/or the latest audited financial statements
of that Subsidiary (consolidated in the case of a Subsidiary which
itself has Subsidiaries) and the latest audited consolidated financial
statements of the Group, but if a Subsidiary has been acquired since
the date as at which the latest audited consolidated financial
statements of the Group were prepared, the financial statements shall
be adjusted in order to take into account the acquisition of that
Subsidiary (that adjustment being certified by the Group's auditors as
representing an accurate reflection of each of the respective revised
total assets and turnover of the Group).
A report by the auditors of the Company that a Subsidiary is a
Material Subsidiary shall, in the absence of manifest error, be
conclusive and binding on all Parties.
"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar
month, except that:
(a) if the numerically corresponding day is not a Business Day,
that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one,
or if there is not, on the immediately preceding Business Day;
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" means a New Lender as specified in a Transfer
Certificate.
"Obligors" means the Borrowers and the Guarantors and "Obligor" means
any of them.
"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 Ordinary
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 Costs" means all costs, fees and expenses (and taxes thereon)
and all stamp, documentary, registration or similar taxes incurred by
or on behalf of Cemex Parent, the Company, Bidco or the Target in
connection with the Offer, the financing of the Offer and the
refinancing of the Financial Indebtedness of members of the Target
Group.
"Offer Document" means the offer (or scheme) document delivered or to
be delivered to the shareholders of the Target in relation to the
Offer.
"Offer Documents" means the Offer Document, the Press Release and any
other documents despatched to the shareholders of the Target in
relation to the Offer by or on behalf of Bidco.
"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).
"Ordinary Shares" means the ordinary shares of 25 pence each in the
Target.
"Original Financial Statements" means:
(a) in relation to the Company, its audited unconsolidated and
consolidated financial statements for its financial year ended
31 December 2003;
(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.
"Original Obligor" means an Original Borrower or an Original
Guarantor.
"Outlook" means a rating outlook of the Company with regard to the
Company's economic and/or fundamental business condition, as assigned
by a Rating Agency.
"Panel" means the Panel on Takeovers and Mergers.
"Participating Member State" means any member state of the European
Union that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Union relating to Economic
and Monetary Union.
"Party" means a party to this Agreement.
"Permitted Securitisations" means a sale, transfer or other
securitisation of receivables and related assets by the Company or its
Subsidiaries, including a sale at a discount, provided that (i) such
receivables have been transferred, directly or indirectly, by the
originator thereof to a Special Purpose Vehicle in a manner that
satisfies the requirements for an absolute conveyance, and not merely
a pledge, under the laws and regulations of the jurisdiction in which
such originator is organised, (ii) such Special Purpose Vehicle issues
notes, certificates or other obligations which are to be repaid from
collections and other proceeds of such receivables and (iii) except
for customary representations, warranties, covenants and indemnities,
such sale, transfer or other securitisation is carried out on a
non-recourse basis.
"Phase II Proceedings" means proceedings under Article 6 (1) (c) of
the Council Regulation (EC) 139/2004.
"Press Release" means a press announcement to be released by Bidco
announcing the terms of the Offer.
"Process Agent" means Bidco.
"Qualifying Lender" has the meaning given to that term in Clause 14
(Tax gross-up and indemnities).
"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 the Company or an issue of securities of
or guaranteed by the Company, where the rating is based primarily on
the senior unsecured credit risk of the Company 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.
"Reference Banks" means, the principal London offices of Citibank,
N.A., Deutsche Bank A.G., Banco Bilbao Vizcaya Argentaria, S.A. and
such other banks as may be appointed by the Agent in consultation with
the Company.
"Refinancing Loans" means Facility C1 Loans made for the purposes
specified in paragraph (a) of Clause 3.1 (Purpose).
"Relevant Interbank Market" means, in relation to euro, the European
interbank market, and, in relation to any other currency, the London
interbank market.
"Relevant Jurisdiction" means in relation to an Obligor:
(a) its jurisdiction of incorporation; and
(b) any jurisdiction where it conducts its business.
"Relevant Period" has the meaning given to that term in Clause 22
(Financial Covenants).
"Relevant Target Facilities" means all such Financial Indebtedness of
the Target Group which comprises bilateral or syndicated credit
facilities provided by banks or other financial institutions before or
after the date of this Agreement but not including any fixed rate
privately placed notes or any publicly issued debt instruments.
"Repeating Representations" means each of the representations set out
in Clauses 20.1 (Status) to Clause 20.6 (Governing law and
enforcement), Clause 20.9 (No default), paragraphs (a) and (b) of
Clause 20.11 (Financial statements), Clause 20.12 (Pari passu
ranking), Clause 20.13 (No proceedings pending or threatened), Clause
20.15 (No winding-up), Clause 20.16 (Material Adverse Change) and
Clause 20.14 (Offer Documents Information).
"Rollover Loan" means one or more Facility C1 Loans:
(a) made or to be made on the same day that a maturing Facility C1
Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Facility C1 Loan;
(c) in the same currency as the maturing Facility C1 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 C1 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 Ordinary 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 Company and the Lenders.
"Section 429 Notice" means a notice in the prescribed form to those
holders of Target Shares which have not accepted the Offer, pursuant
to Section 429(2) of the Companies Act 1985.
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement
or arrangement having a similar effect. "Selection Notice" means a
notice substantially in the form set out in Part II of Schedule 3
(Selection Notice) given in accordance with Clause 11 (Interest
Periods) in relation to a Term Facility.
"Spain" means the Kingdom of Spain.
"Spanish Public Document" means any obligation in an Escritura Publica
or documento intervenido.
"Special Purpose Vehicle" means a securitisation trust or fund,
limited liability company, partnership or other special purpose person
established to implement a securitisation of receivables, provided
that the business of such person is limited to acquiring, servicing
and funding receivables and related assets and activities incidental
thereto.
"Specified Time" means a time determined in accordance with Schedule 8
(Timetables).
"Stake" means a number of shares in any Group member held by another
Group member the disposal of which would cause the first Group member
to cease to be a Subsidiary of the second Group member.
"Sub Underwriter Fee Letter" means the sub underwriter fee letter
dated on or about the date of this Agreement between the Arranger, the
Company, Cemex Holdco and Cemex Parent.
"Subsidiary" means in relation to any company or corporation, a
company or corporation:
(a) which is controlled, directly or indirectly, by the first
mentioned company or corporation;
(b) more than half the issued share capital of which is
beneficially owned, directly or indirectly by the first
mentioned company or corporation; or
(c) which is a Subsidiary of another Subsidiary of the first
mentioned company or corporation,
and for this purpose, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body.
"Syndication and Fees Letter" means the syndication and fees letter
dated on or about the date of this Agreement between the Arranger and
the Company detailing certain agreed arrangements and principles
regarding syndication of the Facilities and setting out certain of the
fees referred to in Clause 13 (Fees).
"Target" means RMC Group PLC, a company incorporated under the laws of
England and Wales.
"Target Group" means the Target and its Subsidiaries.
"Target Shares" means all of the Ordinary Shares, which are or will be
the subject of the Offer.
"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.
"Term Facility" means Facility C2 or Facility C3.
"Term Loan" means a Facility C2 Loan or a Facility C3 Loan and any
Facility C1 Loan following the exercise by the Company of the term-out
option pursuant to Clause 8 (Conversion of Facility C1).
"Termination Date" means:
(a) in relation to Facility C1, the day which is 364 days after
the date of this Agreement;
(b) in relation to Facility C2, the day which is 36 Months after
the date of this Agreement;
(c) in relation to Facility C3 the day which is 60 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 C1
Commitments, the Total Facility C2 Commitments and the Total Facility
C3 Commitments.
"Total Facility C1 Commitments" means the aggregate of the Facility C1
Commitments.
"Total Facility C2 Commitments" means the aggregate of the Facility C2
Commitments.
"Total Facility C3 Commitments" means the aggregate of the Facility C3
Commitments.
"Transaction Documents" means the Finance Documents, the Offer
Documents and the Company /Bidco Intercompany Loan Agreement.
"Transfer Certificate" means a certificate substantially in the form
set out in Schedule 5 (Form of Transfer Certificate) or any other form
agreed between the Agent and the Company.
"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.
1.2 Construction
(a) Unless a contrary indication appears a 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 Company 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 a "Transaction Document" or
any other agreement or instrument is a reference to
that Finance Document or Transaction 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 "person" includes any person, firm, company,
corporation, government, state or agency of a state or
any association, trust or partnership (whether or not
having separate legal personality) of two or more of
the foregoing;
(ix) 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;
(x) the "winding-up", "dissolution", "administration" or
"reorganisation" of a company or corporation shall be
construed so as to include any equivalent or analogous
proceedings (such as, in Spain, suspension de pagos,
quiebra, concurso or any other situacion concursal)
under the laws and regulations of the jurisdiction in
which such company or corporation is incorporated or
any jurisdiction in which such company or corporation
carries on business including the seeking of
liquidation, winding-up, reorganisation, bankruptcy,
dissolution, administration, arrangement, adjustment,
protection or relief of debtors;
(xi) a provision of law is a reference to that provision as
amended or re-enacted without material modification;
(xii) a time of day is a reference to London time; and
(xiii) 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 (Financial 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
(Financial Covenants), there is no breach thereof.
1.3 Currency Symbols and Definitions
"(pound)" and "sterling" denote 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:
(a) a 364 day multicurrency revolving loan facility in an
aggregate amount equal to the Total Facility C1 Commitments;
(b) a three year multicurrency term loan facility in an aggregate
amount equal to the Total Facility C2 Commitments;
(c) a five year multicurrency term loan facility in an aggregate
amount equal to the Total Facility C3 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.
2.3 Affiliate Facility Offices
(a) A Lender may designate an Affiliate of that Lender as its
Facility Office for the purpose of participating in or making
Loans to Borrowers in particular countries.
(b) An Affiliate of a Lender may be designated for the purposes of
paragraph (a):
(i) by appearing under the name of the Lender in Parts II
(The Original Lenders) of Schedule 1 and executing
this Agreement; or
(ii) by being referred to in and executing a Transfer
Certificate by which the Lender becomes a Party.
(c) An Affiliate of a Lender referred to in this Clause 2.3 shall
not have any Commitment, but shall be entitled to all rights
and benefits under the Finance Documents relating to its
participation in Loans, and shall have the corresponding
duties of a Lender in relation thereto, and is a Party to this
Agreement and each other relevant Finance Document for those
purposes.
(d) A Lender which has an Affiliate appearing under its name in
Parts II (The Original Lenders) of Schedule 1 or, as the case
may be, in a Transfer Certificate, will procure, subject to
the terms of this Agreement, that the Affiliate participates
in Loans to the relevant Borrower(s) in place of that Lender.
However, if as a result of the Affiliate's participation, an
Obligor would be obliged to make a payment to the Affiliate
under Clause 14 (Tax Gross-up and indemnities) or Clause 15
(Increased costs), then the Affiliate is only entitled to
receive payment under those clauses to the same extent as the
Lender (designating such Affiliate) would have been if the
Lender had not designated such Affiliate for purposes of
paragraph (a) above.
3. PURPOSE
3.1 Purpose
(a) Each Borrower shall apply the proceeds of each Facility C1
Loan in or towards refinancing Financial Indebtedness of
members of the Target Group which is outstanding as of the
first Utilisation after the Unconditional Date and for payment
of any break funding costs, redemption premia and other costs,
fees and expenses (and taxes thereon) payable in connection
with such refinancing.
(b) The proceeds of each Facility C2 Loan and each Facility C3
Loan will be applied on or after the Unconditional Date, in or
towards:
(i) financing the acquisition by Bidco of the Target
Shares to be acquired by Bidco pursuant to the Offer;
(ii) financing the consideration payable by Bidco with
respect to the Target Shares pursuant to the
procedures contained in sections 428-430F of the
Companies Act 1985;
(iii) financing payments to holders of options in respect of
shares in the Target who exercise or surrender their
options in connection with the Offer;
(iv) financing or refinancing the Offer Costs, other than
fees paid to the financial advisers to Bidco in
relation to the Offer;
(v) refinancing Financial Indebtedness of members of the
Target Group and for the payment of any break funding
costs, redemption premia and other costs, fees and
expenses (and taxes thereon) payable in connection
with such refinancing; and
(vi) if the Cemex Holdco B Facilities have been fully
utilised, financing the payment of amounts due under
Loan Notes.
(c) if the Cemex Holdco B Facilities have been fully utilised, the
proceeds of each Facility C2 Loan and each Facility C3 Loan
may be applied to finance payment for Ordinary Shares by way
of market purchases made prior to the Unconditional Date.
(d) Utilisations after the Unconditional Date may only be made if
the Cemex Parent A Facilities and the Cemex Holdco B
Facilities have been fully utilised or will be fully utilised
simultaneously with such Utilisations hereunder.
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 Company 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) save that the
Company may deliver a Utilisation Request for Loans to fund market
purchases of Ordinary Shares prior to the Unconditional Date
notwithstanding that the conditions precedent specified in paragraphs
5(b) and (c) of Part 1 of Schedule 2 (Conditions Precedent) have not
been met. The Agent shall notify the Company 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 20.21 (Times on which representations are made) 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
Acquisition Utilisation (other than any to be made prior to
the Unconditional Date), 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 an Acquisition Utilisation or otherwise
(including by invoking any conditions set out in Clause 4.1
(Initial Conditions Precedent) and Clause 4.2 (Further
Conditions Precedent)) provided that this Clause 4.3 shall not
apply to any Refinancing Loans; 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 Acquisition 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 Acquisition 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 an Acquisition 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 of a Lender) 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 24.17 (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 euros 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 30.9
(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 Company
for a currency to be approved under paragraph (a)(ii) above,
the Agent will confirm to the Company 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
(a) The Company may not deliver a Utilisation Request if as a
result of the proposed Utilisation:
(i) 10 or more Facility C1 Loans would be outstanding; or
(ii) 5 or more Facility C2 Loans would be outstanding; or
(iii) 5 or more Facility C3 Loans would be outstanding.
(b) The Company may not request that a Term Loan be divided if, as
a result of the proposed division, 10 or more Term Loans would
be outstanding.
(c) Any Loan made by a single Lender under Clause 6.2
(Unavailability of a currency) shall not be taken into account
in this Clause 4.5.
4.6 Utilisation after the Unconditional Date
The Facilities may only be utilised after the Unconditional Date if
the Agent has received confirmation from the agents under the Cemex
Parent A Facilities and the Cemex Holdco B Facilities that those
facilities are fully utilised or that it has received irrevocable
requests under those facilities such that they will be fully utilised
simultaneously with the first Utilisation under this Agreement after
the Unconditional Date.
SECTION 3
UTILISATION
5. UTILISATION
5.1 Delivery of a Utilisation Request
The Company 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$50,000,000 or, if less, the relevant
Available Facility; or
(ii) if the currency selected is sterling or euros, a
minimum of (pound)30,000,000 or, as the case may be,
EUR50,000,000 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 Company 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 Company 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 Term Loans
The Borrowers shall:
(a) repay all Facility C2 Loans on the Termination Date relating
thereto; and
(b) repay all Facility C3 Loans in equal semi-annual instalments
starting on the Facility C3 First Repayment Date and ending on
the Termination Date relating to Facility C3.
7.2 Repayment of Facility C1 Loans
The Borrowers shall repay each Facility C1 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 C1 Loans shall be repaid on, or prior to the Termination Date
relating thereto.
8. CONVERSION OF FACILITY C1
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 C1 Loan (pro rata amongst the Lenders)
forming part of a Utilisation and outstanding on the
Termination Date relating to Facility C1 be converted
on such Termination Date into Term Loans maturing on
the Final C1 Termination Date; and
(ii) all or part of the Facility C1 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 C1 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 C1 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 C1 Loan to be converted
had been a new Term Loan,
then all or a part of each Facility C1 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 C1 Loan is denominated at the time of the
Conversion Request and shall not be repayable on the original
Termination Date pursuant to Clause 7.2 (Repayment of Facility C1
Loans) but shall instead be repayable on the Final C1 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 7.2 (Repayment
of Facility C1 Loans) but shall instead be repayable on the Final C1
Termination Date.
8.4 Interest
The first Interest Period for each Term Loan made pursuant to Clauses
8.2 (Conversion of Existing Facility C1 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 Company to repay that Lender's participation on the date
such repayment is required to be made;
(b) upon the Agent notifying the Company, the Commitment of that
Lender will be immediately cancelled; and
(c) the Company shall, on the last day of the Interest Period for
each Loan occurring after the Agent has notified the Company
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 Company 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 Company 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$50,000,000) 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
A Borrower may, if the Company 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$50,000,000).
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 Company 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
Company has given notice under paragraph (a) above (or, if
earlier, the date specified by the Company in that notice),
each 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 the Company, the Net Borrowings to
Adjusted EBITDA ratio was greater than 2.25:1 when
last tested under Clause 22.2 (Financial Condition);
or
(ii) in respect of Cemex Holdco, the Consolidated Leverage
Ratio (as defined in the Cemex Facility B Agreement)
is at any time greater than 2.5:1,
the Company 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 Financial Indebtedness owed by
Cemex Holdco or any of its Subsidiaries (including under this
Agreement and the Cemex Facility B Agreement).
(c) The Financial Indebtedness to be repaid pursuant to paragraph
(b) above shall be Utilisations (or utilisations under the
Cemex Facility B Agreement) unless the originally scheduled
repayment date of any other Financial Indebtedness is to occur
prior to the scheduled repayment date for the next repayable
Utilisation (or utilisation under the Cemex Facility B
Agreement), in which event, the Company may elect to repay
such earlier repayable Financial Indebtedness first.
9.7 Application of mandatory prepayments
A prepayment of Utilisations (or utilisations under the Cemex Facility
B Agreement) made under Clause 9.6 (Capital Markets Proceeds) shall be
applied as the Company 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) A Borrower may not reborrow any part of a Term Loan which is
prepaid.
(d) Unless a contrary indication appears in this Agreement, any
part of Facility C1 which is prepaid may be reborrowed in
accordance with the terms of this Agreement.
(e) No Borrower shall 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 relevant
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 each
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 relevant Borrower
of the determination of a rate of interest under this Agreement.
11. INTEREST PERIODS
11.1 Selection of Interest Periods
(a) The Company may select an Interest Period for a Loan in the
Utilisation Request for that Loan or (if the Loan is a Term
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 Company not later than the Specified Time.
(c) If the Company fails to deliver a Selection Notice to the
Agent in accordance with paragraph (b) above, the relevant
Interest Period will be three Months.
(d) Subject to this Clause 11, the Company may select an Interest
Period of one, two, three or six Months, or any other period
agreed between the Company 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 C1 Loan which is converted to a Term Loan
under Clause 8 (Conversion of Facility C1), the Final C1
Termination Date).
(f) Each Interest Period for a Term 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
C1) a Facility C1 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 Term Loans
(a) Subject to paragraph (b) below, if two or more Interest
Periods relate to Term Loans:
(i) in the same currency;
(ii) of the same period; and
(iii) ending on the same date,
those Term Loans will, unless the Company specifies to the
contrary in the Selection Notice for the next Interest Period,
be consolidated into, and be treated as, a single Term 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 Company requests in a
Selection Notice that a Term Loan be divided into two or more
Term Loans, that Term 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 Term
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
Company so requires, the Agent and the Company 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 Company, be binding on all
Parties.
12.4 Break Costs
(a) Each 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 that
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 Commitment fee
(a) The Company shall pay to the Agent (for the account of each
Lender) a commitment fee in the Base Currency computed at the
rate of:
(i) 30 per cent. of the applicable Margin from time to
time per annum on that Lender's Available Commitment
under Facility C1 for the period commencing on the
date of this Agreement and ending on the last day of
the Availability Period applicable to Facility C1;
(ii) 30 per cent. for the period of 90 days from the date
of this Agreement and 35 per cent. thereafter, in each
case, of the applicable Margin from time to time per
annum on that Lender's Available Commitment under
Facility C2 for the period commencing on the date of
this Agreement and ending on the last day of the
Availability Period applicable to Facility C2; and
(iii) 30 per cent. for the period of 90 days from the date
of this Agreement and 35 per cent. thereafter, in each
case, of the applicable Margin from time to time per
annum on that Lender's Available Commitment under
Facility C3 for the period commencing on the date of
this Agreement and ending on the last day of the
Availability Period applicable to Facility C3.
(b) The accrued commitment fees set out above 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.
13.2 Arrangement fee
The Company shall pay to the Arranger an arrangement fee in the amount
and at the times agreed in the Syndication and Fees Letter.
13.3 Agency fee
The Company 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.
13.4 Term-out fee
The Company shall pay the Agent (for the account of each Lender
participating in Facility C1) a term-out fee of 0.1 per cent. flat
calculated on the Facility C1 Commitments termed-out pursuant to
Clause 8 (Conversion of Facility C1). The term-out fee is payable on
the exercise by the Company of the term-out option pursuant to Clause
8 (Conversion of Facility C1).
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.
"Qualifying Lender" means:
(i) any legal person or entity (including, for the
avoidance of doubt, any securitisation trust or fund)
habitually resident for taxation purposes in a
Qualifying State which is not acting through a
territory considered as a tax haven pursuant to
Spanish laws and regulations (currently set out in
Royal Decree 1080/1991 of 5 July (Real Decreto
1080/1991 de 5 de julio)) or through a permanent
establishment in Spain; or
(ii) any legal person or entity (including, for the
avoidance of doubt, any securitisation trust or fund)
resident in a country which, as a result of any
applicable double taxation treaty, would not require
any payments made by a Borrower to such financial
institution hereunder to be subject to any deduction
or withholding in Spain; or
(iii) any Domestic Lender.
"Qualifying State" means a member state of the European Union
(other than Spain).
"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 Company 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 Company 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 Company 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
Company.
(d) A Protected Party shall, on receiving a payment from an
Obligor under this Clause 14.3, notify the Agent.
14.4 Tax Certificates
(a) Without prejudice to the other provisions of this Clause 14,
in relation to any exemption from or application of a rate
lower than that of general application pursuant to any
legislation in Spain or any double taxation treaty, or
pursuant to any other cause relating to residence status, any
Lender which is not a Domestic Lender shall supply the
Company, through the Agent, prior to the interest payment date
with a certificate of residence issued by the pertinent fiscal
administration, in the case of a Qualifying Lender which is
not a Domestic Lender, accrediting such Qualifying Lender as
resident for tax purposes in a Qualifying State or, as the
case may be, accrediting such Lender as resident for tax
purposes in a State which has signed and ratified a double
taxation treaty with Spain.
(b) As such certificates referred to in paragraph (a) of this
Clause 14.4 are, at the date hereof, only valid for a period
of one year, each such Lender will be required to so supply a
further such certificate upon expiry of the previous
certificate in relation to any further payment of interest.
14.5 Stamp Taxes
The Company 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 entering 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 Company 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 Company and provide the Company 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
(a) 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:
(i) the occurrence of any Event of Default;
(ii) 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 29 (Sharing among the Finance
Parties);
(iii) funding, or making arrangements to fund, its
participation in a Loan requested by the Company 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
(iv) a Loan (or part of a Loan) not being prepaid in
accordance with a notice of prepayment given by the
Company.
(b) The Company shall procure that an Obligor will indemnify and
hold harmless each Finance Party and each of their respective
directors, officers, employees, agents, advisors and
representatives (each being an "Indemnified Person") from and
against any and all claims, damages, losses, liabilities,
costs, legal expenses and other expenses (all together
"Losses") which have been incurred by or awarded against any
Indemnified Person, in each case arising out of or in
connection with any claim, investigation, litigation or
proceeding (or the preparation of any defence with respect
thereto) commenced or threatened by any person in relation to
any of the Finance Documents (or the transactions contemplated
therein, including without limitation, the Offer (whether or
not made), the use of the proceeds of the Facilities or any
acquisition by the Company or Bidco or any person acting in
concert with the Company or Bidco of any of the Target Shares)
except to the extent such Losses or claims result from such
Indemnified Person's negligence or misconduct or a breach of
any Finance Document by an Indemnified Person provided that:
(i) the Indemnified Party shall as soon as reasonably
practicable inform the Cemex Parent of any
circumstances of which it is aware and which would be
reasonably likely to give rise to any such
investigation, litigation or proceeding (whether or
not an investigation, litigation or proceeding has
occurred or been threatened);
(ii) the Indemnified Party will, where reasonable and
practicable, and taking into account the provisions of
this Agreement, give Cemex Parent an opportunity to
consult with it with respect to the conduct or
settlement of any such investigation, litigation or
proceeding;
(iii) an Indemnified Party will provide the Company on
request (and, to the extent practicable without any
waiver of legal professional privilege or breach of
confidentiality obligation) with copies of material
correspondence in relation to the Losses and allow the
Company to attend all material meetings in relation to
the Losses, receive copies of material legal advice
obtained by the Indemnified Party in relation to the
Losses;
(iv) the Company will keep strictly confidential all
information received by it in connection with the
Losses and will not disclose any information to any
third party without the prior written consent of the
Indemnified Party;
(v) no Obligor shall be liable for any settlement of the
Losses unless the Company has consented to that
settlement; and
(vi) no Indemnified Party shall be required to comply with
paragraphs (i) or (ii) or (iii) nor shall paragraph
(v) apply unless the Indemnified Party is and
continues to be indemnified on a current basis for its
costs and expenses.
Any third party referred to in this paragraph (b) may rely on
this Clause 16.2 subject to Clause 1.4 (Third Party Rights)
and the provisions of the Third Parties Act.
16.3 Indemnity to the Agent
The Company 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
Company) 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 Company,
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) or 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 Company 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 Company 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 30.9 (Change of currency),
the Company 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 Company 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 each
Borrower of that Borrower's obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever a 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 each Borrower under the Finance
Documents, regardless of any intermediate payment or discharge in
whole or in part.
19.3 Reinstatement
If any payment by any Borrower or any discharge given by a Finance
Party (whether in respect of the obligations of any 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 each 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 each 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,
any Borrower or other person;
(b) the release of any 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, any
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 a 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 a 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 Security.
19.7 Deferral of Guarantors' rights
Until all amounts which may be or become payable by a 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 a Borrower;
(b) to claim any contribution from any other guarantor of any
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
REPRESENTATION, 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) It is a corporation, duly organised and validly existing under
the laws and regulations of its jurisdiction of incorporation.
(b) It has the power to own its assets and carry on its business
as it is being conducted.
20.2 Binding obligations
The obligations expressed to be assumed by it in each Finance Document
are, subject to any reservations which are specifically referred to in
any Legal Opinion, legal, valid, binding and enforceable obligations.
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 conflict
with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any agreement or instrument binding upon it or any of its
assets.
20.4 Power and authority
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery
of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
20.5 Validity and admissibility in evidence
All Authorisations required or desirable:
(a) to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which
it is a party; and
(b) to make the Finance Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
20.6 Governing law and enforcement
(a) The choice of English law as the governing law of the Finance
Documents will be recognised and enforced in its jurisdiction
of incorporation subject to any reservations which are
specifically referred to in any legal opinion.
(b) Any judgment obtained in England in relation to a Finance
Document will be recognised and enforced in its jurisdiction
of incorporation, subject to any reservations which are
specifically referred to in any Legal Opinion.
20.7 Deduction of Tax
It is not required under the laws and regulations of its jurisdiction
of incorporation to make any deduction for or on account of Tax from
any payment it may make under any Finance Document to any Qualifying
Lender.
20.8 No filing or stamp taxes
Under the laws and regulations of its jurisdiction of incorporation it
is not necessary that the Finance Documents be filed, recorded or
enrolled with any court or other authority in that jurisdiction or
that any stamp, registration or similar tax be paid on or in relation
to the Finance Documents or the transactions contemplated by the
Finance Documents.
20.9 No default
(a) No Default or Event of Default is continuing or might
reasonably be expected to result from the making of any
Utilisation.
(b) No other event or circumstance is outstanding which
constitutes a default under any other agreement or instrument
which is binding on it or any of its Subsidiaries or to which
its (or its Subsidiaries') assets are subject which might have
a Material Adverse Effect.
20.10 No misleading information
(a) Any factual information provided by the Company 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
Company's best estimate of its future performance.
(c) So far as the Company 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.
20.11 Financial statements
(a) Its Original Financial Statements were prepared in accordance
with GAAP consistently applied and are complete and accurate
in all material respects.
(b) Its Original Financial Statements fairly represent its
financial condition and operations during the relevant
financial year.
(c) For the purposes of any repetition of the representation
contained in paragraphs (a) and (b) of this Clause 20.11
(pursuant to Clause 20.21 (Times on which representations are
made)) the representations will be made in respect of the
latest consolidated financial statements of each Obligor
instead of the Original Financial Statements.
20.12 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law or
regulation applying to companies generally.
20.13 No proceedings pending or threatened
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which are likely to be adversely
determined and which, if so determined, would be reasonably likely to
have a Material Adverse Effect or purports to affect the legality,
validity or enforceability of any of the obligations under the Finance
Documents have been started or threatened against any Obligor or any
Material Subsidiary.
20.14 Offer Documents Information
Except as expressly permitted pursuant to Clause 23.16 (The Offer),
the Offer Documents contain all the material terms of the Offer and
the Offer Document reflects the terms of the Press Release in all
material respects.
20.15 No winding-up
No legal proceedings or other procedures or steps have been taken or,
to the Company's knowledge after reasonable enquiry, are being
threatened, in relation to the winding-up, dissolution, administration
or reorganisation of any Obligor or Material Subsidiary (other than a
solvent liquidation or reorganisation of any Material Subsidiary which
is not an Obligor).
20.16 Material Adverse Change
There has been no material adverse change in the Company's business,
condition (financial or otherwise), operations, performance or assets
taken as a whole (or the business, consolidated condition (financial
or otherwise) operations, performance or the assets generally of the
Group taken as a whole) since its Original Financial Statements.
20.17 Environmental compliance
Each member of the Group has performed and observed in all material
respects all Environmental Law, Environmental Permits and all other
material covenants, conditions, restrictions or agreements directly or
indirectly concerned with any contamination, pollution or waste or the
release or discharge of any toxic or hazardous substance in connection
with any real property which is or was at any time owned, leased or
occupied by any member of the Group or on which any member of the
Group has conducted any activity where failure to do so might
reasonably be expected to have a Material Adverse Effect.
20.18 Environmental Claims
No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened against any member of the Group
where that claim would be reasonably likely, if determined against
that member of the Group to have a Material Adverse Effect.
20.19 No Immunity
In any proceedings taken in its jurisdiction of incorporation in
relation to this Agreement, it will not be entitled to claim for
itself or any of its assets immunity from suit, execution, attachment
or other legal process.
20.20 Private and commercial acts
Its execution of the Finance Documents constitutes, and its exercise
of its rights and performance of its obligations hereunder will
constitute, private and commercial acts done and performed for private
and commercial purposes.
20.21 Times on which representations are made
(a) All the representations and warranties in this Clause 20 are
made to each Finance Party on the date of this Agreement
except for the representations and warranties set out in
Clause 20.10 (No misleading information) which are deemed to
be made by each Obligor on the date that the Information
Memorandum is approved by Bidco and on the date the Facilities
are primarily syndicated (and for this purpose, the
Information Memorandum referred to therein shall be the
Information Memorandum as updated in accordance with the
principles agreed between the Arranger and Bidco).
(b) The Repeating Representations are deemed to be made by each
Obligor to each Finance Party on the Unconditional Date, the
date of each Utilisation Request and on the first day of each
Interest Period provided that in respect of any Acquisition
Utilisation made during the Certain Funds Period, only the
Major Representations will be deemed to be repeated by the
relevant Obligor on the date such Acquisition Utilisation is
made and on first day of each Interest Period relating thereto
and provided further that the representations given in Clause
20.14 (Offer Documents Information) shall not be repeated
after the end of the Certain Funds Period.
(c) The Repeating Representations and each of the representations
and warranties set out in Clause 20.5 (Validity and
admissibility in evidence), 24.6 (Insolvency), Clause 20.9 (No
default), and Clause (b) of Clause 20.10 (No misleading
information) (in respect only of information given by it) are
deemed to be made by each Additional Guarantor to each Finance
Party on the day on which it becomes an Additional Guarantor
and are repeated on the Unconditional Date for the Target
Group.
(d) Each representation or warranty deemed to be made after the
date of this Agreement shall be made by reference to the facts
and circumstances existing at the date the representation or
warranty is made.
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 Company shall supply to the Agent:
(a) as soon as the same become available, but in any event within
180 days after the end of each of such Obligor's respective
financial years:
(i) the Company's audited consolidated and unconsolidated
financial statements for that financial year; and
(ii) each Guarantor's respective audited consolidated (to
the extent available) and unconsolidated financial
statements for that financial year; and
(b) as soon as the same become available, but in any event within
90 days after the end of each of the first three quarters of
each of its financial years its unaudited consolidated
financial statements for that period.
21.2 Compliance Certificate
(a) The Company shall supply to the Agent, with each set of
consolidated financial statements delivered pursuant to
paragraphs (a) (i) and (b) of Clause 21.1 (Financial
statements), a Compliance Certificate setting out (in
reasonable detail) computations as to compliance with Clause
22 (Financial Covenants) as at the date as at which those
financial statements were drawn up.
(b) Each Compliance Certificate shall be signed by an Authorised
Signatory of the Company and, if required to be delivered with
the consolidated financial statements delivered pursuant to
paragraph (a) (i) of Clause 21.1 (Financial statements), by
the Company's auditors.
21.3 Requirements as to financial statements
(a) Each set of financial statements delivered by the Company
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 Company shall procure that each set of financial
statements delivered pursuant to Clause 21.1 (Financial
statements) is prepared using 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 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 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 (Financial
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.
(c) If the Company adopts International Accounting Standards or,
subject to paragraph (b) above, there are changes to GAAP, or
the accounting practices or reference periods the Company and
the Agent shall, at the Company's request, negotiate in good
faith with a view to agreeing such amendments to the financial
covenants in Clause 22 (Financial Covenants) and the ratios
used to calculate the Margin and, in each case, the
definitions used therein as may be necessary to ensure that
the criteria for evaluating the Group's financial condition
grant to the Lenders protection equivalent to that which would
have been enjoyed by them had the Company not adopted
International Accounting Standards or there had not been a
change in 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 Company subject to the consent of the
Majority Lenders. If no such agreement is reached within 90
days of the Company's request, the Company will remain subject
to the obligation to deliver the information specified in
paragraph (b) of this Clause 21.3.
21.4 Information: miscellaneous
The Company shall supply to the Agent:
(a) all documents dispatched by the Company to its shareholders
(or any class of them) or its creditors generally at the same
time as they are dispatched;
(b) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which
are current, or which, to the Company's knowledge after
reasonable enquiry, are being threatened or are pending and
are likely to be adversely determined against any member of
the Group which, in the reasonable opinion of the Company, are
not spurious or vexatious, and which might, if adversely
determined, have a Material Adverse Effect;
(c) promptly, such further information regarding the financial
condition, assets and business of any Obligor or member of the
Group as the Agent (or any Lender through the Agent) may
reasonably request (including, but not limited to, information
on Ratings, if such credit rating has not been publicly
announced) other than any information the disclosure of which
would result in a breach of any applicable law or regulation
or confidentiality agreement entered into in good faith
provided that the Company shall use reasonable efforts to be
released from any such confidentiality agreement; and
(d) promptly upon becoming aware of them, the details of any
Environmental Claim which is current, threatened or pending
against any member of the Group which is referred to in Clause
23.12 (Environmental claims) which are not spurious or
vexatious, which are likely to be adversely determined against
any member of the Group and which could reasonably be
expected, if adversely determined, to have a Material Adverse
Effect;
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 Company 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 Company shall, by not less than five 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 26 (Changes to the Obligors).
(c) Following the giving of any notice pursuant to paragraph (b)
above, the Company 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 Notarisations
Each Obligor shall notify the Agent of any Notarisations referred to
in paragraph (a)(iv) of Clause 23.5 (Notarisation) promptly upon such
Notarisations taking place.
22. FINANCIAL COVENANTS
22.1 Financial definitions
In this Clause 22:
"Adjusted EBITDA" means, for any Relevant Period, the sum of (a)
EBITDA and (b) with respect to any business acquired during such
period, the sum of (i) the operating income and (ii) depreciation and
amortization expense for such business, as determined in accordance
with GAAP for such Relevant Period, provided that the Company need
only make the adjustments contemplated by "(b)" above if the operating
income and depreciation and amortization expense of the acquired
business in the 12 Months prior to its acquisition amount to
US$10,000,000 or more.
"Cemex Capital Contributions" means contributions in cash to the
capital of the Company by CEMEX S.A. de C.V. or by any of its
Subsidiaries not being a Subsidiary of the Company made after 1
January 2004.
"EBITDA" means for the Relevant Period immediately preceding the date
on which it is to be calculated, operating profit plus annual
depreciation for fixed assets plus annual amortisation of intangible
assets plus annual amortisation of start-up costs of the Group plus
dividends received from non-consolidated companies and from companies
consolidated by the equity method plus an amount equal to the amount
of Cemex Capital Contributions made during such period immediately
preceding the date on which it is to be calculated (up to an amount
equal to the amount of Royalty Expenses made in such period). Such
calculation shall be made in accordance with GAAP.
"Finance Charges" means for any Relevant Period, the sum (without
duplication) of (a) all interest expense in respect of Financial
Indebtedness (including imputed interest on Capital Leases) for such
period plus (b) all debt discount and expense (including, without
limitation, expenses relating to the issuance of instruments
representing Financial Indebtedness) amortized during such period plus
(c) amortization of discounts on sales of receivables during such
period plus (d) all factoring charges for such period plus (e) all
guarantee charges for such period plus (f) any charges analogous to
the foregoing relating to Off-Balance-Sheet Transactions for such
period, all determined on a consolidated basis in accordance with
GAAP.
"Guarantees" means any guarantee or indemnity of Financial
Indebtedness of another person (in the case of the latter for any
specified amount or otherwise in the amount specified in or for which
provision has been made in the accounts of the indemnifier) in any
form made other than in the ordinary course of business of the
guarantor.
"Intellectual Property Rights" means all copyrights (including rights
in computer software), trade marks, service marks, business names,
patents, rights in inventions, registered designs, design rights,
database rights and similar rights, rights in trade secrets or other
confidential information and any other intellectual property rights
and any interests (including by way of license) in any of the
foregoing (in each case whether registered or not and including all
applications for the same) which may subsist in any given
jurisdiction.
"Net Borrowings" means, at any time, the remainder of (a) Total
Borrowings at such time less (b) the aggregate amount of the following
items held by the Company and its Subsidiaries at such time: cash on
hand, marketable securities, investments in money market funds,
banker's acceptances, short-term deposits and other liquid
investments.
"Off-Balance-Sheet Transactions" means any present or future financing
transaction not reflected as indebtedness on the consolidated balance
sheet of the Company, but being structured in a way that may result in
payment obligations by any Group member, excluding any financing
transaction in the form of:
(a) interest rate and currency exchange rate hedging agreements to
hedge risks arising in the normal course of business;
(b) transactions containing potential payments by any Group member
(e.g. via a put-option agreement or similar structures) under
which payments are incapable of being triggered until three
days after the Termination Date in relation to Facility C3; or
(c) any supply arrangement or equipment lease in respect of energy
or raw material sourcing containing contingent obligations to
directly or indirectly purchase (including through the
purchase of shares or other equity participation) the
underlying operations or assets up to an aggregate maximum of
$100,000,000.
"Relevant Period" means each period of twelve Months ending on the
last day of each consecutive quarter of the Company's financial year
and each period of twelve Months ending on the last day of the
Company's financial year.
"Rolling Basis" means the calculation of a ratio or an amount made at
the end of a financial quarter in respect of that financial quarter
and the three immediately preceding financial quarters.
"Royalty Expenses" means expenses incurred by the Company or any of
its Subsidiaries to CEMEX S.A. de C.V. or any of its Subsidiaries not
being a Subsidiary of the Company as (a) consideration for the
granting to the Company or any Subsidiary of a licence to use, exploit
and enjoy Intellectual Property Rights and any other intangible assets
such as, but not limited to, know-how, formulae, process technology
and other forms of intellectual and industrial property, whether or
not registered, held by CEMEX S.A. de C.V. or any of its Subsidiaries
not being a Subsidiary of the Company; or (b) fees, commissions or
other amounts accrued in respect of any management contract, services
contract, overhead expenses allocation arrangement or any other
similar transaction; provided that in paragraphs (a) and (b) such
amounts shall have been taken into consideration in the calculation of
operating profit under Spanish GAAP.
"Subordinated Debt" means debt granted by CEMEX S.A. de C.V. (a
company registered in Mexico) or any of its Subsidiaries not being a
member of the Group to the Company or any of its Subsidiaries on terms
such that no payments of principal may be made thereunder (including
but not limited to following any winding up, concurso de acreedores or
other like event of the Company) until the Agent has confirmed in
writing that all amounts outstanding hereunder have been paid in full.
"Total Borrowings" means without duplication, in respect of any person
all Guarantees granted by such person, plus all Off-Balance-Sheet
Transactions entered into by such person, plus all such person's
Financial Indebtedness, but excluding any Subordinated Debt.
22.2 Financial condition
The Company shall ensure that in respect of any Relevant Period:
(a) the ratio of Net Borrowings to Adjusted EBITDA calculated on a
Rolling Basis shall be less than or equal to 3.5:1; and
(b) the ratio of EBITDA to Finance Charges calculated on a Rolling
Basis shall be greater than or equal to 3:1.
22.3 Financial testing
The financial covenants set out in Clause 22.2 (Financial condition)
shall be tested quarterly by reference to each of the Company's
consolidated financial statements delivered pursuant to and/or each
Compliance Certificate delivered with respect to any such consolidated
financial statements pursuant to Clause 21.1 (Financial statements)
and Clause 21.2 (Compliance Certificate).
22.4 Accounting terms
All accounting expressions which are not otherwise defined herein
shall have the meaning ascribed thereto in GAAP.
23. GENERAL UNDERTAKINGS
The undertakings in this Clause 23 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.
23.1 Authorisations
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain
in full force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its
jurisdiction of incorporation to enable it to perform its obligations
under the Finance Documents and to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document.
23.2 Preservation of corporate existence
Subject to Clause 23.8 (Merger), each Obligor shall (and the Company
shall ensure that each of its Material Subsidiaries will), preserve
and maintain its corporate existence and rights.
23.3 Preservation of properties
Each Obligor shall (and the Company shall ensure that each of its
Material Subsidiaries will) maintain and preserve all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
23.4 Compliance with laws and regulations
(a) Each Obligor shall (and shall procure that each of its
Subsidiaries will) comply in all respects with all laws and
regulations to which it may be subject, if failure to so
comply would be likely to have a Material Adverse Effect.
(b) The Company shall (and shall procure that each of its
Subsidiaries will) ensure that the levels of contribution to
pension schemes are and continue to be sufficient to comply
with all its and their material obligations under such schemes
and generally under applicable laws (including ERISA) and
regulations, except where failure to make such contributions
would not reasonably be expected to have a Material Adverse
Effect.
23.5 Notarisation
(a) Subject to paragraph (b) of this Clause 23.5, at any time when
notarised Spanish Public Documents have priority status on
insolvency of a Spanish company under Spanish law, the Company
shall not (and shall procure that none of its Subsidiaries
will) permit any of its unsecured indebtedness to be notarised
as a Spanish Public Document (any such notarisation, a
"Notarisation"), other than the following permitted
Notarisations ("Permitted Notarisations"):
(i) any Permitted Notarisations listed in Schedule 11
(Existing Notarisations) and any amendments or
modifications thereof, provided that any such
amendment or modification shall not result in the
increase of the principal amount of the relevant
indebtedness nor the extension of the maturity thereof
nor, for the avoidance of doubt, relate to any
refinancing of the relevant indebtedness;
(ii) Notarisations which are required by applicable law or
regulation or which arise by operation of law other
than pursuant to any issue of debt securities in
accordance with Article 285 of the Spanish
Corporations Law (Ley de Sociedades Anonimas);
(iii) Notarisations with the prior written consent of the
Majority Lenders;
(iv) any Notarisations securing indebtedness the principal
amount of which (when aggregated with the principal
amount of any other Notarisations other than any
Permitted Notarisations under paragraphs (i) or (iii)
above) do not exceed US$100,000,000 (or its equivalent
in another currency or currencies); and
(v) any Notarisations relating to indebtedness in respect
of any sale and purchase agreement customarily
registered in a public register in Spain and payment
of which indebtedness is made within seven days of the
date of such agreement.
(b) Paragraph (a) of this Clause 23.5 shall not apply if
the Company, concurrently with any such Notarisation
(not being a Permitted Notarisation) referred to in
paragraph (a) of this Clause 23.5 and at its own cost
and expense, causes this Agreement to be the subject
of a Notarisation.
23.6 Negative pledge
The Company shall not and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or permit to exist any
Security on or with respect to any of its property or assets or those
of any Subsidiary, whether now owned or held or hereafter acquired,
other than the following Security ("Permitted Security"):
(a) Security for taxes, assessments and other governmental charges
the payment of which is being contested in good faith by
appropriate proceedings promptly initiated and diligently
conducted and for which such reserves or other appropriate
provision, if any, as shall be required by GAAP shall have
been made;
(b) statutory liens of landlords and liens of carriers,
warehousemen, mechanics and materialmen incurred in the
ordinary course of business for sums not yet due or the
payment of which is being contested in good faith by
appropriate proceedings promptly initiated and diligently
conducted and for which such reserves or other appropriate
provision, if any, as shall be required by GAAP shall have
been made;
(c) liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation,
unemployment insurance and other types of social security;
(d) any judgment lien, unless the judgment it secures shall not,
within 60 days after the entry thereof, have been discharged
or execution thereof stayed pending appeal, or shall not have
been discharged within 60 days after the expiration of any
such stay;
(e) Security existing on the date of this Agreement as described
in Schedule 10 (Existing Security) provided that the principal
amount secured thereby is not increased;
(f) any Security on property acquired by the Company or any of its
Subsidiaries after the date of this Agreement that was
existing on the date of acquisition of such property provided
that such Security was not incurred in anticipation of such
acquisition; and any Security created to secure all or any
payment of the purchase price, or to secure indebtedness
incurred or assumed to pay all or any part of the purchase
price, of property acquired by the Company or any of its
Subsidiaries after the date of this Agreement provided,
further, that (i) any such Security permitted pursuant to this
paragraph (f) shall be confined solely to the item or items of
property so acquired (including, in the case of any
acquisition of a corporation through the acquisition of 51% or
more of the voting stock of such corporation, the stock and
assets of any acquired Subsidiary or acquiring Subsidiary by
which the acquired Subsidiary will be directly or indirectly
controlled) and, if required by the terms of the instrument
originally creating such Security, other property which is an
improvement to, or is acquired for specific use with, such
acquired property; (ii) if applicable, any such Security shall
be created within nine Months after, in the case of property,
its acquisition, or, in the case of improvements, their
Completion; and (iii) no such Security shall be made in
respect of any indebtedness in relation to repayment of which
recourse may be had to any member of the Group (in the form of
Security) other than in relation to the item or items as
referred to in (i) above;
(g) any Security renewing, extending or refinancing the
indebtedness to which any Security permitted by paragraph (f)
above relates; provided that the principal amount of
indebtedness secured by such Security immediately prior
thereto is not increased and such Security is not extended to
other property;
(h) any Security created on shares representing no more than a
Stake in the capital stock of any of the Company's
Subsidiaries solely as a result of the deposit or transfer of
such shares into a trust or a special purpose corporation
(including any entity with legal personality) of which such
shares constitute the sole assets provided that the proceeds
from the deposit or transfer of such shares into such trust,
corporation or entity and from any transfer of or
distributions in respect of the Company's or any Subsidiary's
interest in such trust, corporation or entity are applied as
provided under Clause 23.7 (Disposals) and provided further
that such Security may not secure Financial Indebtedness of
the Company or any Subsidiary unless otherwise permitted under
this Clause 23.6 and that the economic and voting rights in
such capital stock is maintained by the Company in its
Subsidiaries;
(i) any Security permitted by the Agent, acting on the
instructions of the Majority Lenders;
(j) any securitisation of receivables notwithstanding that it is
made at discount from the amount due on such receivables and
provided that it is made on a non recourse basis or that
recourse is directly or indirectly limited to collection of
the receivables plus related interest and financial and
collection costs and expenses;
(k) any Security created which is necessary in order to undertake
the steps contemplated in the Funds Flow Statement; and
(l) in addition to the Security permitted by the foregoing
paragraphs (a) to (k), Security securing indebtedness of the
Company and its Subsidiaries (taken as a whole) not in excess
of an amount equal to 5% of the Adjusted Consolidated Net
Tangible Assets of the Group, as determined in accordance with
GAAP,
unless, in each case, the Obligors have made or caused to be made
effective provision whereby the obligations hereunder are secured
equally and rateably with, or prior to, the indebtedness secured by
such Security (other than Permitted Security) for so long as such
indebtedness is so secured.
For the purposes of paragraph (l) of this Clause 23.6, "Adjusted
Consolidated Net Tangible Assets" means, with respect to any person,
the total assets of such person and its Subsidiaries (less applicable
depreciation, amortisation and other valuation reserves), including
any write-ups or restatements required under GAAP (other than with
respect to items referred to in (ii) below), minus (i) all current
liabilities of such person and its Subsidiaries (excluding the current
portion of long-term debt) and (ii) all goodwill, trade names,
trademarks, licences, concessions, patents, un-amortised debt discount
and expense and other intangibles, all as determined on a consolidated
basis in accordance with GAAP.
23.7 Disposals
(a) Subject to paragraph (b) of this Clause 23.7, the Company
shall not (and the Company shall ensure that none of its
Subsidiaries will), without the prior written consent of the
Majority Lenders, enter into a single transaction or a series
of transactions (whether related or not) and whether voluntary
or involuntary to sell, lease, transfer or otherwise dispose
of all its assets or a substantial part of its assets
representing more than 5 per cent. in aggregate of the total
consolidated assets of the Group, calculated by reference to
the latest consolidated financial statements of the Company,
delivered pursuant to paragraph (a) (i) of Clause 21.1
(Financial statements), unless (i) full value for such assets
is received by the Company or its Subsidiaries; (ii) an amount
equal to the net proceeds of any such sale, lease, transfer or
other disposal is reinvested within twelve Months of receipt
by the Company or its Subsidiaries in the business of the
Group; and (iii) neither such sale, lease, transfer or other
disposal nor such reinvestment directly results in a downgrade
from the then current Ratings of the Company.
(b) Paragraph (a) of this Clause 23.7 does not apply to any sale,
lease, transfer or other disposal of assets:
(i) made on arm's length terms and for fair market value
in the ordinary course of business of the disposing
entity;
(ii) in respect of any securitisation of receivables
notwithstanding that it is made at discount from the
amount due on such receivables and provided that it is
made on a non-recourse basis or that recourse is
directly or indirectly limited to collection of the
receivables plus related interest and financial and
collection costs and expenses;
(iii) from any member of the Group to another member of the
Group on arm's length terms and for fair market or
book value provided that the exception contained in
this paragraph (iii) shall not apply to any sale,
lease, transfer or other disposal of an asset:
(A) from any Obligor to another member of the
Group which is not an Obligor unless the
person to whom such sale, lease, transfer or
other disposal is made (the "Transferee")
becomes a Guarantor; or
(B) from any Material Subsidiary to another member
of the Group which is not a Material
Subsidiary unless the person making such sale,
lease, transfer or other disposal does not
cease to be a Material Subsidiary or, if it
ceases to be a Material Subsidiary, any
Transferee shall be deemed to be a Material
Subsidiary;
(iv) in respect of which the net proceeds are used to repay
any amounts outstanding hereunder in an amount equal
to such net proceeds and if the Available Commitments
in an amount equal thereto are cancelled;
(v) in respect of which the proceeds are applied pursuant
to any prepayment requirement included as at the date
hereof in existing loan agreements of any Subsidiary
in relation to the use of proceeds received from the
disposal of any assets; or
(vi) contemplated in the Funds Flow Statement.
23.8 Merger
(a) Subject to paragraphs (b) and (c) of this Clause 23.8, unless
it has obtained the prior written approval of the Majority
Lenders, no Obligor shall (and the Company shall ensure that
none of its Subsidiaries will) enter into any amalgamation,
demerger, merger or other corporate reconstruction (a
"Reconstruction"), other than (i) a Reconstruction relating
only to the Company's Subsidiaries inter se; (ii) a
Reconstruction between the Company and any of its
Subsidiaries; (iii) a solvent reorganisation or liquidation of
any of the Subsidiaries not being Obligors, provided that in
any case no Default shall have occurred and be continuing at
the time of such transaction or would result therefrom and
provided further that (a) none of the Security (if any)
granted to the Lenders nor the guarantees granted by the
Guarantors hereunder is or are adversely affected as a result,
and (b) the resulting entity, if it is not an Obligor, assumes
the obligations of the Obligor the subject of the merger; or
(iv) as contemplated in the Funds Flow Statement.
(b) Subject to paragraph (c) of this Clause 23.8, the Obligors may
merge with any other person if the book value of such person's
assets prior to the merger does not exceed 3 per cent. of the
book value of the Group's assets taken as a whole considered
on a consolidated basis.
(c) In paragraphs (a) and (b) of this Clause 23.8, the then
existing Ratings of the Company shall not be downgraded
whether at the time of, or within 3 Months of, the date of
announcement of a Reconstruction, directly as a result of any
merger involving the Company, and the resulting entity, if it
is not an Obligor, shall assume the obligations of the Obligor
the subject of the merger.
23.9 Change of business
(a) None of the Obligors shall make a substantial change to the
general nature of its business from that carried on at the
date of this Agreement and there shall be no cessation of
business in relation to any of the Obligors (save (except in
the case of the Company which shall in no event cease or
substantially change its business) unless another Obligor
continues to operate any such business).
(b) The Company shall procure that no substantial change is made
to the general nature of the business of any of its Material
Subsidiaries (other than a Guarantor) from that carried on at
the date of this Agreement and that there shall be no
cessation of such business.
23.10 Insurance
The Obligors shall (and the Company shall ensure that each of its
Material Subsidiaries (other than the Obligors) will) maintain
insurances on and in relation to its business and assets with
reputable underwriters or insurance companies against those risks and
to the extent as is usual for companies carrying on the same or
substantially similar business where such insurance is available on
reasonable commercial terms.
23.11 Environmental Compliance
The Company shall (and the Company shall ensure that each of its
Subsidiaries will) comply in all material respects with all
Environmental Law and obtain and maintain any Environmental Permits
and take all reasonable steps in anticipation of known or expected
future changes to or obligations under the same, in each case where
failure to do so might reasonably be expected to have a Material
Adverse Effect.
23.12 Environmental Claims
The Company shall inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same:
(a) if any Environmental Claim has been commenced or (to the best
of the Company's knowledge and belief) is threatened against
any member of the Group which is likely to be determined
adversely to the member of the Group; or
(b) of any facts or circumstances which will or are reasonably
likely to result in any Environmental Claim being commenced or
threatened against any member of the Group, where the claim
would be reasonably likely, if determined against that member
of the Group, to have a Material Adverse Effect.
23.13 Transactions with Affiliates
Except as contemplated in the Funds Flow Statement in respect of the
option to purchase Bidco shares referred to therein, each Obligor
shall (and the Company shall ensure that its Subsidiaries will) ensure
that any transactions with respective Affiliates are on terms that are
fair and reasonable and no less favourable to such Obligor or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a person not an Affiliate.
23.14 Pari passu ranking
Save as regards Permitted Nortarisations, each Obligor shall ensure
that at all times its payment obligations under the Finance Documents
rank at least pari passu with the claims of all its other unsecured
and unsubordinated creditors, except for obligations mandatorily
preferred by law or regulation applying to companies generally from
time to time.
23.15 Subsidiary Financial Indebtedness incurrence
If, at any time following the date falling 90 days after the first
Utilisation after the Unconditional Date, the aggregate outstanding
principal amount of Financial Indebtedness of the Subsidiaries of the
Company exceeds the amount which is the Threshold Percentage (defined
below) of the aggregate total assets of the Group (as shown in the
latest consolidated financial statements of the Company delivered
under Clause 21 (Information Undertakings)), then for so long as such
remains the case, no Subsidiary of the Company may, directly or
indirectly, refinance any of its Financial Indebtedness nor create,
incur, assume, guarantee, have outstanding or otherwise become liable
with respect to any new Financial Indebtedness other than:
(a) Financial Indebtedness owed under or in respect of or by way
of guarantee of the fixed rate senior notes issued by Cemex
Espana Finance LLC pursuant to a Note Purchase Agreement dated
as of June 23, 2003;
(b) Financial Indebtedness of Subsidiaries existing on the date of
this Agreement up to US$100,000,000 and any Financial
Indebtedness extending the maturity of, or refunding or
refinancing, the same, provided that:
(i) the principal amount of such Financial Indebtedness
shall not be increased above the principal amount
thereof outstanding immediately prior to such
extension, refunding or refinancing; and
(ii) the aggregate amount of all Financial Indebtedness
that has been extended, refunded or refinanced under
this paragraph (b) shall not exceed $100,000,000 (or
the equivalent thereof if denominated in another
currency),
for the avoidance of doubt, it is understood that:
(X) if any such Financial Indebtedness is
successively extended, refinanced or refunded,
only the Financial Indebtedness outstanding
after giving effect to all such successive
extensions, refinancing and refundings shall
be counted against the foregoing amount; and
(Y) any Financial Indebtedness incurred in a
currency other than dollars pursuant to this
paragraph (b) shall continue to be permitted
under this paragraph (b), notwithstanding any
fluctuation in currency values, as long as the
outstanding principal amount of such Financial
Indebtedness (denominated in its original
currency) does not exceed the maximum amount
of such Financial Indebtedness (denominated in
such currency) permitted to be outstanding on
the date such Financial Indebtedness was
incurred);
(c) Financial Indebtedness of a Subsidiary owed to the Company or
another Subsidiary;
(d) Financial Indebtedness of a Subsidiary that is:
(i) outstanding at the time such Subsidiary became a
Subsidiary or;
(ii) contractually required to be incurred by such
Subsidiary at such time,
provided that such Financial Indebtedness shall not have been
incurred in contemplation of such Subsidiary becoming a
Subsidiary and provided that there is no recourse to any
member of the Group other than such Subsidiary following the
date falling 60 days after such Subsidiary became a
Subsidiary;
(e) any Financial Indebtedness extending the maturity of the
Financial Indebtedness referred to in paragraph (d) above, or
any refunding or refinancing of the same, provided that the
principal amount of such Financial Indebtedness shall not be
increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or refinancing;
(f) Financial Indebtedness of a Subsidiary which:
(i) has been formed for the purpose of, and whose primary
activities are, the issuance or other incurrence of
debt obligations to Persons other than Affiliates of
the Company and the lending or other advance of the
net proceeds of such debt obligations (whether
directly or indirectly) to the Company or any
Guarantor which is a Holding Company (as defined in
sub-Clause 26.3 (Additional Obligors)); and
(ii) has no significant assets other than promissory notes
and other contract rights in respect of funds advanced
to the Company or such Guarantors; and
(g) Financial Indebtedness of a Subsidiary incurred pursuant to or
in connection with any pooling agreements in place within a
bank or financial institution, but only to the extent of
offsetting credit balances of the Company or its Subsidiaries
pursuant to such pooling arrangement.
"Threshold Percentage" means fifteen per cent. (15%) save that when
seventy five per cent. or more of the issued ordinary share capital of
the Target are owned by members of the Group and the long term public
debt rating of the Company most recently published by the relevant
Ratings Agency (following the Unconditional Date and taking account of
the acquisition by Bidco of the Target), is lower than BBB- (as rated
by S&P) and Baa3 (as rated by Moody's), the Threshold Percentage shall
be reduced to ten per cent. (10%).
23.16 Refinancing Relevant Target Facilities
(a) To the extent necessary for the Company to be in compliance
with the requirements of Clause 23.15 (Subsidiary Financial
Indebtedness incurrence), the Company will procure that once
the Target has become a Subsidiary of Bidco, any undrawn
commitment under the Relevant Target Facilities will be
cancelled and any outstanding Financial Indebtedness of the
Target or any member of the Target Group under such Relevant
Target Facilities will be refinanced (and any Security given
in relation thereto released and discharged), in each case, as
soon as practicable (with a view to avoiding any prepayment,
repayment or broken funding costs and expenses).
(b) The Company will, as soon as practicable after the date or
dates upon which any Target Shares are acquired by Bidco,
ensure that those shares are registered in the register of
shareholders of Target.
23.17 Under 75% Restrictions
(a) If on the Unconditional Date, Bidco owns less than seventy
five per cent. (75%) of the Ordinary Shares, the Company shall
procure that:
(i) as soon as reasonably practicable and in any event not
later than 60 days after the Unconditional Date, the
Target (and each Subsidiary of the Target which is a
borrower under Relevant Target Facilities or any other
Financial Indebtedness of the Target (or such
Subsidiary) which becomes repayable before the end of
such 60 day period) accedes to this Agreement as an
Additional Borrower; and
(ii) to the extent available, Facility C1 Loans are
borrowed by the Target (or its relevant Subsidiary)
and used in repayment of Relevant Target Facilities
(or any other Financial Indebtedness of the Target
Group which becomes repayable before the end of such
60 day period) as soon as practicable (with a view to
avoiding any prepayment, repayment or broken funding
costs and expenses) and such repayment shall be
permitted for the purpose of Clause 23.15 (Subsidiary
Financial Indebtedness incurrence) and shall not
create a breach thereof.
(b) To the extent Facility C1 Loans are available for utilisation,
at any time when Bidco owns less than seventy five per cent.
(75%) of the Ordinary Shares, the Company shall ensure that no
member of the Group (other than a member of the Target Group)
shall incur any obligation in respect of any Financial
Indebtedness of any member of the Target Group or provide any
loan or investment or other financial assistance to any member
of the Target Group to assist such person in servicing or
repaying any Financial Indebtedness save as regards guarantees
of the Facilities.
23.18 The Offer
The Company further undertakes to ensure that:
(a) if it has not already done so, Bidco shall issue the Press
Release within 7 Business Days of the date of this Agreement;
(b) without the prior agreement of the Majority Lenders Bidco will
not:
(i) take or permit to be taken any step as a result of
which any increase in the offer price for any of the
Target Shares from that specified in the Press Release
is or may be required to be made save to the extent
funded out of additional equity or subordinated debt;
(ii) declare the Offer unconditional as to acceptances
until it has acquired or agreed to acquire (either
pursuant to the Offer or otherwise) shares in the
Target carrying over 50% of the voting rights
attributable to the Target's share capital (ignoring
any shares in the Target held in treasury); or
(iii) (and will procure that no member of the Group will)
issue any press release or make any public statement
or announcement which makes reference to the
Facilities or to some or all of the Finance Parties,
unless required by law or by the Code (in which case
Bidco shall notify the Agent as soon as practicable
upon becoming aware of the requirement) (other than
the Press Release or any amended or updated Press
Release, the form of which has been approved by the
Arranger);
(c) Bidco will:
(i) comply in all material respects with the Code (subject
to any waivers granted by the Panel) and all
applicable laws and regulations relevant in the
context of the Offer;
(ii) keep the Agent informed as to the status and progress
of the Offer and, in particular, will from time to
time and promptly upon request give to the Agent
reasonable details as to the current level of
acceptances of the Offer;
(iii) promptly supply to the Agent:
(A) copies of all documents, certificates, notices
or announcements received or issued by it (or
on its behalf) in relation to the Offer
(including every material certificate
delivered by the receiving agent for the Offer
to it and/or its advisers pursuant to the
Code); and
(B) any other information regarding the progress
of the Offer as the Agent may reasonably
request;
(iv) other than pursuant to the Offer or sections 428-430
of the Companies Act 1985, not purchase any Target
Shares if to do so would compel it, and shall
otherwise ensure that it is not obliged, to make a
mandatory offer under Rule 9 of the Code;
(v) comply in all material respects with all of its
obligations under the Scheme;
(d) if Bidco becomes aware of a circumstance or event which, if
not waived, would entitle Bidco (with the Panel's consent, if
needed) to lapse or withdraw the Offer it shall promptly
notify the Agent;
(e) Bidco will promptly give notices under Section 429 of the
Companies Act 1985 in respect of all classes of the Target
Shares upon the conditions contained in the Companies Act 1985
for the giving of those notices being satisfied; and
(f) all of the ordinary share capital (including any convertible
securities or share options) of the Target will be subject to
the Offer (except for any such shares already owned by Cemex
Parent and its Subsidiaries).
23.19 Payment restrictions affecting Subsidiaries
The Company shall not enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement or
arrangement directly limiting the ability of any of its Subsidiaries
to:
(a) declare or pay dividends or other distributions in respect of
its or their respective equity interests in a Subsidiary,
except any agreement or arrangement (other than in relation to
the Asia Fund as at the date hereof) entered into by a person
prior to such person becoming a Subsidiary, in which case the
Company shall use its reasonable endeavours to remove such
limitations. If however, such limitations are reasonably
likely to affect the ability of the Company to satisfy its
payment obligations under this Agreement, the Company shall
use its best endeavours to remove such limitations as soon as
possible;
or
(b) repay or capitalise any intercompany indebtedness owed by any
Subsidiary to any Obligor and, for the avoidance of doubt,
subordination provisions shall not be considered a limitation
for the purpose of this Clause 23.19.
23.20 Indebtedness of Guarantors
None of the Guarantors (other than the Company) shall incur or permit
to exist any Financial Indebtedness other than:
(a) Financial Indebtedness in respect of its taxes or costs,
incurred pursuant to legal requirements;
(b) Financial Indebtedness owed to another member of the Group;
(c) Financial Indebtedness of another member of the Group
guaranteed by a Guarantor;
(d) Financial Indebtedness in relation to the Loan Notes; and
(e) Financial Indebtedness not falling within paragraphs (a) to
(d) above, in an aggregate amount not exceeding EUR3,000,000
(or the equivalent thereof in any other currency).
23.21 Notification of adverse change in Ratings
The Company shall promptly notify the Agent of any change in its
Ratings or Outlook.
23.22 Company/Bidco Intercompany Loan
The Company shall immediately on receipt of relevant funds on-lend to
Bidco pursuant to the Company/Bidco Intercompany Loan Agreement the
proceeds of all Loans.
23.23 Ownership of Bidco
The Company shall procure that Bidco becomes its direct wholly owned
Subsidiary by the date falling one hundred (100) days after the
Unconditional Date or, if such is not practicable, as soon as
practicable after such date.
24. EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 24 is an
Event of Default.
24.1 Non-payment
An Obligor does not pay on the due date any amount payable pursuant to
a Finance Document at the place at and in the currency in which it is
expressed to be payable unless such failure to pay is caused by an
administrative error or technical difficulties within the banking
system in relation to the transmission of funds and payment is made
within three Business Days of its due date.
24.2 Financial Covenants
Any requirement of Clause 22 (Financial Covenants) is not satisfied.
24.3 Other obligations
(a) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 24.1
(Non-payment) and Clause 22 (Financial covenants)).
(b) No Event of Default under paragraph (a) of this Clause 24.3
above will occur if the failure to comply is capable of remedy
and is remedied within fifteen Business Days of the Agent
giving written notice to the Company or the Company becoming
aware of the failure to comply whichever is the earlier.
24.4 Misrepresentation
Any representation or statement made or deemed to be made by an
Obligor in the Finance Documents or any other document delivered by or
on behalf of any Obligor under or in connection with any Finance
Document is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made.
24.5 Cross acceleration
(a) Any Financial Indebtedness of any Obligor or member of the
Group is not paid when due nor within any originally
applicable grace period.
(b) Any Financial Indebtedness of any Obligor or member of the
Group is declared to be or otherwise becomes due and payable
prior to its specified maturity as a result of an event of
default (however described).
(c) No Event of Default will occur under this Clause 24.5 if the
aggregate amount of Financial Indebtedness falling within
paragraphs (a) and (b) of this Clause 24.5 above is less than
$50,000,000 (or its equivalent in any other currency or
currencies).
24.6 Insolvency
(a) Any of the Obligors or Material Subsidiaries is unable or
admits inability to pay its debts as they fall due or, by
reason of actual or anticipated financial difficulties,
suspends making payments on any of its debts or commences
negotiations with one or more of its creditors with a view to
rescheduling any of its indebtedness.
(b) The value of the assets of any of the Obligors or Material
Subsidiaries is less than its liabilities (taking into account
contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of any
of the Obligors or Material Subsidiaries.
24.7 Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) a moratorium of any indebtedness, winding-up, dissolution,
administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any of the
Obligors or Material Subsidiaries other than a solvent
liquidation or reorganisation of any of the Material
Subsidiaries not being Obligors;
(b) a composition, assignment or arrangement with any class of
creditor of any of the Obligors or Material Subsidiaries;
(c) the appointment of a liquidator (other than in respect of a
solvent liquidation of any of the Material Subsidiaries not
being Obligors), receiver, administrator, administrative
receiver, compulsory manager or other similar officer in
respect of any of the Obligors or Material Subsidiaries or any
of their assets;
or any analogous procedure or step is taken in any jurisdiction.
This paragraph shall not apply to any winding-up petition which is
frivolous or vexatious and is discharged, stayed or dismissed within
60 days of commencement.
24.8 Expropriation and sequestration
Any expropriation or sequestration affects any asset or assets of any
Obligor or any Material Subsidiary and has a Material Adverse Effect.
24.9 Creditors' process and enforcement of Security
(a) Any Security is enforced against any Obligor or any Material
Subsidiary.
(b) Any attachment, distress or execution affects any asset or
assets of any Obligor or any Material Subsidiary which is
reasonably likely to cause a Material Adverse Effect.
(c) No Event of Default under paragraphs (a) or (b) of this Clause
24.9 above will occur if:
(i) the action is being contested in good faith by
appropriate proceedings;
(ii) the principal amount of the indebtedness secured by
such Security or in respect of which such attachment,
distress or execution is carried out represents less
than $50,000,000 (or its equivalent in any other
currency or currencies); and
(iii) the enforcement proceedings, attachment, distress or
execution is or are discharged within 60 days of
commencement.
24.10 Failure to comply with judgment
Any Obligor or any Material Subsidiary fails to comply with or pay any
sum due from it under any judgment or any order made or given by any
court of competent jurisdiction save unless payment of any such sum is
suspended pending an appeal.
24.11 Unlawfulness
It is or becomes unlawful for an Obligor to perform any of its
obligations under the Finance Documents where non-performance is
reasonably likely to cause a Material Adverse Effect.
24.12 Repudiation
An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
24.13 Change of Control
If CEMEX, S.A. de C.V. ceases to:
(a) be entitled to (whether by way of ownership of shares
(directly or indirectly), proxy, contract, agency or
otherwise):
(i) cast, or control the casting of, at least 51 per cent.
of the maximum number of votes that might be cast at a
general meeting of the Company;
(ii) appoint or remove all, or the majority, of the
directors or other equivalent officers of the Company;
(iii) give directions with respect to the operating and
financial policies of the Company which the directors
or other equivalent officers of the Company are
obliged to comply with; or
(b) hold at least 51 per cent. of the common shares in the
Company.
24.14 Material adverse change
Any material adverse change arises in the financial condition of the
Group taken as a whole which the Majority Lenders reasonably determine
would result in the failure by any Obligor to perform its payment
obligations under any of the Finance Documents.
24.15 Completion of Funds Flow
If Bidco has not become a wholly-owned Subsidiary of the Company
pursuant to the steps and on the basis outlined in the Funds Flow
Statement by the date falling as soon as practicable but, in any case,
100 days after the Unconditional Date.
24.16 Acceleration
On and at any time after the occurrence of an Event of Default the
Agent may, while such Event of Default is continuing and shall if so
directed by the Majority Lenders, by notice to the Company:
(a) cancel the Total Commitments whereupon they shall immediately
be cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
declare that all or part of the Loans be payable on demand, whereupon
they shall immediately become payable on demand by the Agent on the
instructions of the Majority Lenders.
24.17 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
23 (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
25. CHANGES TO THE LENDERS
25.1 Assignments and transfers by the Lenders
Subject to this Clause 25, 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 any Utilisation,
to another bank or financial institution or to a securitisation trust
or fund or (subject to paragraph (a) of Clause 25.2 (Conditions of
assignment or transfer)) other entity (the "New Lender").
25.2 Conditions of assignment or transfer
(a) The Borrower must be given prior notification of any
assignment or transfer becoming effective under Clause 25.1
(Assignments and transfers by the Lenders) and the consent of
the Company 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 Company to an assignment or transfer must
not be unreasonably withheld or delayed. The Company 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 Company 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 25.5 (Procedure for transfer) is complied with.
(e) 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.
(f) In addition to the other assignment rights provided in this
Clause 25, each Lender may assign, as collateral or otherwise,
any of its rights under this Agreement (including rights to
payments of principal or interest on the Loans) to any trustee
for the benefit of the holders of such Lender's securities
provided that no such assignment shall release the assigning
Lender from any of its obligations under this Agreement.
25.3 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
US$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.
25.4 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 25; 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.
25.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 25.2 (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 Company.
(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".
25.6 Copy of Transfer Certificate to Borrower
The Agent shall, as soon as reasonably practicable after it has
received a Transfer Certificate, send to the Company a copy of that
Transfer Certificate.
25.7 Disclosure of information
(a) Any Lender may disclose to any of its Affiliates and any other
person:
(i) 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;
(ii) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in
relation to, or any other transaction under which
payments are to be made by reference to, the Finance
Documents; or
(iii) 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.
25.8 Interest
All interest accrued in the Interest Period in which a transfer is
effective shall be paid to the Existing Lender.
26. CHANGES TO THE OBLIGORS
26.1 Assignment and Transfers by Obligors
No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
26.2 Additional Borrowers
(a) Subject to compliance with the provisions of paragraphs (b)
and (c) of Clause 21.6 ("Know your customer" checks), the
Company may request that any of its wholly owned Subsidiaries
which is not a dormant Subsidiary becomes an Additional
Borrower. That Subsidiary shall become an Additional Borrower
if:
(i) all the Lenders approve the addition of that
Subsidiary;
(ii) the Company and that Subsidiary deliver to the Agent a
duly completed and executed Accession Letter;
(iii) the Subsidiary is (or becomes) a Guarantor prior to
becoming a Borrower;
(iv) the Company confirms that no Default is continuing or
would occur as a result of that Subsidiary becoming an
Additional Borrower; and
(v) the Agent has received all of the documents and other
evidence listed in Part II of Schedule 2 (Conditions
precedent to be delivered by an Additional Obligor) in
relation to that Additional Borrower, each in form and
substance satisfactory to the Agent.
(b) The Agent shall notify the Company and the Lenders promptly
upon being satisfied that it has received (in form and
substance satisfactory to it) all the documents and other
evidence listed in Part II of Schedule 2 (Conditions precedent
to be delivered by an Additional Obligor).
26.3 Additional Guarantors
(a) Subject to compliance with the provisions of paragraphs (b)
and (c) of Clause 21.6 ("Know your client" checks), the
Company may request that any of its wholly owned Subsidiaries
become an Additional Guarantor.
(b) The Company shall procure that in respect of (i) each of its
Subsidiaries to whom a sale, lease, transfer or other disposal
is made by an Obligor pursuant to paragraph (b)(iii)(A) of
Clause 23.7 (Disposals); (ii) each of its Subsidiaries which
is or which is deemed to be a Material Subsidiary, whether
pursuant to paragraph (b)(iii)(B) of Clause 23.7 (Disposals)
or otherwise, such Subsidiary or the Holding Company of such
Material Subsidiary (at the election of the Company) 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 Company delivering to the Agent a duly-completed
and executed Accession Letter; and
(B) the Agent receiving from the Company all of the
documents and other evidence referred to in Part II of
Schedule 2 (Conditions Precedent required to be
delivered by an Additional Obligor) 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 Obligor).
(d) For the purposes of this Clause 26.3 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)).
26.4 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 26.3 (Additional
Obligors); 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 26.4; and
(iii) the Company may not resign as a Guarantor without the
consent of all Lenders.
26.5 Repetition of Representation
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
27. ROLE OF THE AGENT AND THE ARRANGER
27.1 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.
27.2 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
Company'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.
27.3 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.
27.4 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.
27.5 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.
27.6 Rights and discretions
(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 36.1 (Required consents))
believed by it to be genuine, correct and
appropriately authorised; and
(ii) any statement made by a director, authorised signatory
or employee of any person regarding any matters which
may reasonably be assumed to be within his knowledge
or within his power to verify.
(b) The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual
knowledge of a Default arising under Clause 24.1
(Non-payment));
(ii) any right, power, authority or discretion vested in
any Party or the Majority Lenders has not been
exercised; and
(iii) any notice or request made by the Company (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.
27.7 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.
27.8 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.
27.9 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 27 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.
27.10 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).
27.11 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 Company.
(b) Alternatively the Agent may resign by giving notice to the
other Finance Parties and the Company, in which case the
Majority Lenders (after consultation with the Company) 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 Company) 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 27.11. 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 Company, 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.
27.12 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.
27.13 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).
27.14 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.
27.15 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 Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
27.16 Agent's Management Time
Any amount payable to the Agent under Clause 16.3 (Indemnity to the
Agent) and Clause 27.10 (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 Company and the
Lenders, and is in addition to any fee paid or payable to the Agent
under Clause 13 (Fees).
27.17 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.
28. 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.
29. SHARING AMONG THE FINANCE PARTIES
29.1 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 30
(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 30
(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 30.5 (Partial payments).
29.2 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
30.5 (Partial payments).
29.3 Recovering Finance Party's rights
(a) On a distribution by the Agent under Clause 29.2
(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.
29.4 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 29.2 (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.
29.5 Exceptions
(a) This Clause 29 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
30. PAYMENT MECHANICS
30.1 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.
30.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 30.3 (Distributions to an
Obligor), Clause 30.4 (Clawback) and Clause 27.17 (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).
30.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 31 (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.
30.4 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.
30.5 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.
30.6 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.
30.7 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 an Unpaid Sum under this Agreement interest is
payable on the principal or Unpaid Sum at the rate payable on
the original due date.
30.8 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.
30.9 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 Company); 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 Company) 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.
31. 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.
32. NOTICES
32.1 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 32.5
(Electronic Communication)) by email.
32.2 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 Company, 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.
32.3 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 32.2
(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 Company 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 Company
in accordance with this Clause 32.3 will be deemed to have
been made or delivered to each of the Obligors.
32.4 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 32.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the
other Parties.
32.5 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.
32.6 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.
32.7 Obligor Agent
(a) Each Obligor (other than the Company) by its execution of this
Agreement or an Accession Letter (as the case may be)
irrevocably appoints the Company to act on its behalf as its
agent in relation to the Finance Documents and irrevocably
authorises (i) the Company 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 Company 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 Company, or given
to the Company, in its capacity as agent in accordance with
paragraph (a) of this Clause 32.7, 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 Company and any
other Obligor, those of the Company shall prevail.
32.8 Use of Websites
(a) The Company 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 Company 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 Company 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 Company 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 Company accordingly and the Company shall supply
the information to the Agent in paper form. In any event the
Company 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 Company
and the Agent.
(c) The Company 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 Company 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 Company notifies the Agent under paragraph (c)(i) or
paragraph (c)(v) above, all information to be provided by the
Company 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
Company shall comply with any such request within ten Business
Days.
33. CALCULATIONS AND CERTIFICATES
33.1 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.
33.2 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.
33.3 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.
33.4 Spanish Civil Procedure
In the event that this Agreement is raised to a Spanish Public
Documents, for the purposes of Article 572.2 of the Spanish Civil
Procedure Law (Ley de Enjuiciamiento Civil), all parties expressly
agree that the exact amount due at any time by the Obligors to the
Lenders will be the amount specified in a certificate issued by the
Agent (and/or any Lender) in accordance with Clause 33.2 (Certificates
and Determinations) as representative of the Lenders reflecting the
balance of the accounts referred to in Clause 33.1 (Accounts).
33.5 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.
34. 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.
35. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of
any Finance Party or 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.
36. AMENDMENTS AND WAIVERS
36.1 Required consents
(a) Subject to Clause 36.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of
the Majority Lenders and the Company 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 36.
(c) The Company may effect, as agent of each Obligor, any
amendment or waiver permitted by this Clause 36.
36.2 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 Availability Period or to the date
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 Borrowers or any of the Guarantors
other than in accordance with Clause 26 (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 25
(Changes to the Lenders), Clause 26 (Changes to the
Obligors) or this Clause 36,
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.
37. 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
38. GOVERNING LAW
This Agreement is governed by English law.
If any of the Original Guarantors is represented by an attorney or
attorneys in connection with the signing and/or execution and/or
delivery of this Agreement or any agreement or document referred to
herein or made pursuant hereto and the relevant power or powers of
attorney is or are expressed to be governed by the laws and
regulations of a particular jurisdiction, it is hereby expressly
acknowledged and accepted by the other parties hereto that such laws
and regulations shall govern the existence and extent of such
attorney's or attorney's authority and the effects of the exercise
thereof.
39. ENFORCEMENT
39.1 Jurisdiction of English Courts
(a) The courts of England have exclusive jurisdiction to settle
any dispute arising out of or in connection with this
Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 39.1 is for the benefit of the Finance Parties
only. As a result, no Finance Party shall be prevented from
taking proceedings relating to a Dispute in any other courts
with jurisdiction. To the extent allowed by law or regulation,
the Finance Parties may take concurrent proceedings in any
number of jurisdictions.
39.2 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 Obligors
Name of Original Borrower Registration number
(or equivalent, if any)
Cemex Espana, S.A. N(0) Hoja-Registro Mercantil, Madrid:
M- 156542
NIF: A46/004214
Name of Guarantor Registration number
(or equivalent, if any)
Cemex Espana, S.A. N(0) Hoja-Registro Mercantil, Madrid:
M- 156542
NIF: A46/004214
Trade Register of the Chamber of
Commerce and Industry in Amsterdam (The
Netherlands)
Cemex Caracas Investments B.V. 34121194
Cemex Caracas II Investments B.V. 34159953
Cemex Egyptian Investments B.V. 34108365
Cemex Manila Investments B.V. 34108359
Cemex American Holdings B.V. 34213058
Part II
The Original Lenders
Name of Original Lender Facility C1 Facility C2 Facility C3
Commitment Commitment Commitment
(US$) (US$) (US$)
Citibank International plc, 750,000,000 575,000,000 575,000,000
Sucursal en Espana /
Citibank, N.A.
Goldman Sachs Credit 750,000,000 575,000,000 575,000,000
Partners L.P.
Total 1,500,000,000 1,150,000,000 1,150,000,000
SCHEDULE 2
CONDITIONS PRECEDENT
Part I
Conditions Precedent to Initial Utilisation
1. Obligors
(a) A copy of the current constitutional documents of each
Original Obligor.
(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 a copy of a resolution of
the board of directors of each Original Obligor:
(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 referred to in paragraph (b) above in relation to
the Finance Documents.
(d) A certificate of the Company (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
Original Obligor to be exceeded.
(e) A certificate of an Authorised Signatory of the relevant
Original 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. Transaction Documents and related documents
A copy of the Company/Bidco Intercompany Loan Agreement in the agreed
form.
3. Finance Documents
(a) This Agreement executed by the members of the Group party to
this Agreement.
(b) The Syndication and Fee Letter, the Sub Underwriter Fee Letter
and the Costs and Expenses Letter, each executed by all
parties thereto.
4. Legal Opinions
(a) A legal opinion of 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
Kingdom of Spain from Clifford Chance, substantially in the
form distributed to the Original Lenders prior to signing this
Agreement.
(c) An opinion with respect to the laws and regulations of The
Netherlands from Warendorf, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(d) An opinion from in-house counsel of the Company, substantially
in the form distributed to the Original Lenders prior to
signing this Agreement.
5. Offer Related Conditions
(a) A copy, certified as being a true and complete copy by an
Authorised Signatory of Bidco, of the Press Release, in
substantially the form distributed to the Agent prior to
signing of this Agreement (where any changes are not relevant
to the interests of the Finance Parties).
(b) Copies, certified as being true and complete copies by an
Authorised Signatory of Bidco, of each Offer Document
incorporating the terms set out in the Press Release or any
subsequent press announcements released by Bidco in connection
with the Offer or such other changes to reflect the Offer (in
each case, which are not relevant to the interests of the
Finance Parties) and any other terms required by the Code or
the Panel.
(c) A copy, certified as being a true and complete copy by an
Authorised Signatory of Bidco, of the announcement that each
Offer has become or has been declared unconditional in all
respects together with a certificate from an Authorised
Signatory of Bidco that in having declared each Offer
unconditional it is not in breach of Clause 23.18 (The Offer).
6. Other Documents and Evidence
(a) The Group Structure Chart.
(b) The Funds Flow Statement.
(c) The Original Financial Statements of each Obligor.
(d) A certificate of the Company (signed by a director) certifying
that the Company/Bidco Intercompany Loan Agreement is in full
force and effect.
(e) Copies of forms PE-1 and PE-3 stamped by the Bank of Spain
(Banco de Espana), whereby it assigns a Financial Operation
Number ("NOF") to the Facilities and to the Company/Bidco
Intercompany Loan.
Part II
Conditions Precedent Required to be
Delivered by an Additional Obligor
Obligors:
1. An Accession Letter, duly executed by the Additional Obligor and the
Company.
(a) A copy of the constitutional documents of the Additional
Obligor.
(b) A copy of a resolution of the board of directors of the
Additional Obligor:
(i) approving the terms of, and the transactions
contemplated by, the Accession Letter and the Finance
Documents and resolving that it execute the Accession
Letter;
(ii) authorising a specified person or persons to execute
the Accession Letter and other Finance Documents 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 or Selection Notice) 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 referred to in paragraph (b) above.
(d) 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 Obligor, approving the
terms of, and the transactions contemplated by, the Finance
Documents to which the Additional Obligor is a party.
(e) A certificate of the Additional Obligor (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.
(f) A certificate of an Authorised Signatory of the Additional
Obligor 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
Obligor 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 Obligor if not Clifford Chance, legal
advisers to the Lenders.
3. Other documents and evidence
(a) Evidence that any process agent referred to in Clause 39.2
(Service of process) has accepted its appointment.
(b) In relation to any Additional Borrower incorporated in Spain,
a copy of form PE-1 stamped by the Bank of Spain (Banco de
Espana), whereby it assigns a Financial Operation Number
("NOF") to the accession of the such Additional Borrower.
(c) 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 Obligor and the Company
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.
(d) The Original Financial Statements of the Additional Guarantor.
SCHEDULE 3
REQUESTS
Part I A
Utilisation Request
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
Cemex - US$3,800,000,000 Term and Revolving Facilities Agreement
dated [O] 2004 (the "Facilities Agreement")
1. We refer to the Facilities Agreement. This is a Utilisation Request.
Terms defined in the Facilities 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:
(a) Proposed Utilisation Date: [O] (or, if that is not a Business
Day, the next Business Day)
(b) Borrower [O]
(c) Facility to be utilised: [Facility C1] [Facility C2] [Facility
C3] **
(d) Currency of Loan: [O]
(e) Amount: [O] or, if less, the relevant Available Facility
(f) Interest Period: [O]
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 Facilities Agreement shall
have the meaning given to those terms in the Facilities Agreement.
Yours faithfully
................................
authorised signatory for
[the Borrower]
NOTES:
** Select the Facility to be utilised and delete references to the other
Facilities.
Part II
Selection Notice
Applicable to a Term Loan
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
Cemex - US$3,800,000,000 Term and Revolving Facilities Agreement
dated [O] 2004 (the "Facilities Agreement")
1. We refer to the Facilities Agreement. This is a Selection Notice.
Terms defined in the Facilities Agreement have the same meaning in
this Selection Notice unless given a different meaning in this
Selection Notice.
2. We refer to the following Term Loan[s]
Utilisation Date: [ o ]
Borrower [ o ]
Amount: [ o ]
Final Day of Interest Period: [ o ]
3. [We request that the above Term Loan[s] be divided into [O] Term Loans
with the following Interest Periods:]
or
[We request that the next Interest Period for the above Term Loan[s]
is [O]].
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 Facilities Agreement shall
have the meaning given to those terms in the Facilities Agreement.
Yours faithfully
............................
authorised signatory for
[the Borrower]
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 7 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 Company
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 - US$3,800,000,000 Term and Revolving Facilities Agreement
dated [O] 2004 (the "Facilities Agreement")
1. We refer to the Facilities Agreement. This is a Transfer Certificate.
Terms defined in the Facilities Agreement have the same meaning in
this Transfer Certificate unless given a different meaning in this
Transfer Certificate.
2. We refer to Clause 25.5 (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 25.5 (Procedure for transfer).
(b) The proposed Transfer Date is [O].
(c) The Facility Office and address, fax number and attention
details for notices of the New Lender for the purposes of
Clause 32.2 (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 25.4(c)
(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]
By:
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [Agent]
From: [Subsidiary] and [Company]
Dated:
Dear Sirs
Cemex - US$3,800,000,000 Term and Revolving Facilities Agreement
dated [O] 2004 (the "Facilities Agreement")
1. [Subsidiary] agrees to become an [Additional Guarantor/Additional
Borrower] and to be bound by the terms of the Facilities Agreement and
the other Finance Documents as an [Additional Guarantor/Additional
Borrower] pursuant to Clause 26.3 (Additional Obligors)] of the
Agreement. [Subsidiary] is a limited liability company duly
incorporated under the laws of [name of relevant jurisdiction] with
registered number [o].
2. [Subsidiary's] administrative details are as follows:
Address:
Fax No.:
Attention:
3. This letter is governed by English law.
4. Terms which are used in this Accession Letter which are not defined in
this Accession Letter but are defined in the Facilities Agreement
shall have the meaning given to those terms in the Facilities
Agreement.
[This Accession Letter is entered into by deed.]**
Signed by:
--------------------------- -------------------------
[Company] [Subsidiary]
NOTES:
* Delete as appropriate.
** If the Facilities are fully drawn there may be an issue in relation to
past consideration for a proposed Additional Obligor. This can be
overcome by acceding by way of deed.
SCHEDULE 7
FORM OF COMPLIANCE CERTIFICATE
To: [o] as Agent
From: [Company]
Dated:
Dear Sirs
Cemex - US$3,800,000,000 Term and Revolving Facilities Agreement
dated [O] 2004 (the " Facilities Agreement")
1. We refer to the Facilities 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 22.2 (Financial condition) the financial
condition of the Group as of [ ] evidenced by the
consolidated financial statements for the financial
year/four quarters then ended comply with the following
conditions:
(i) Net Borrowings EUR______________ ("A")
comprising EUR [Guarantees]
EUR [Off-Balance-Sheet Transactions]
EUR [Financial Indebtedness]
EUR [Liquid Investments]
Adjusted EBITDA
comprising:
EUR [operating profit]
EUR [annual depreciation for fixed assets]
EUR [annual amortisation of intangible assets]
EUR [annual amortisation of start-up costs of the
Group]
EUR [dividends received from non-consolidated
companies]
EUR [dividends received from companies consolidated
by the equity method]
EUR [Cemex Capital Contributions]
EUR [acquired business (i) operating income and
(ii) depreciation and amortisation expense]
EUR ______________ ("B")
A:B to be less than or equal to 3.5:1
(ii) EBITDA EUR ______________ ("B")
Finance Charges
comprising EUR [interest expenses]
EUR [other expenses]
EUR ______________ ("C")
B:C to be greater than or equal to 3:1
(b) As at the date of this Certificate the following
Subsidiaries of the Group fall within the definition of
Material Subsidiaries as set out in Clause 1.1
(Definitions):
3. We confirm that no Default is continuing.
Signed:
---------------------------
Authorised Signatory
of
Company
[insert applicable certification language]
- ----------------------------------------
For and on behalf of
[name of auditors of the Company]
SCHEDULE 8
TIMETABLES
Loans in euro or dollars Loans in sterling
Agent notifies the Company 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 LMA CONFIDENTIALITY UNDERTAKING
[Letterhead of Existing Bank]
To:
=====================================
[insert name of Potential Lender]
=====================================
Re: The Facilities
=====================================
Borrower:
Amount:
Agent:
=====================================
Dear Sirs
We understand that you are considering participating in the Facilities. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
1. Confidentiality Undertaking You undertake:
(a) to keep the Confidential Information confidential and not to
disclose it to anyone except as provided for by paragraph 2
below and to ensure that the Confidential Information is
protected with security measures and a degree of care that
would apply to your own confidential information;
(b) to 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 Facilit[y/ies];
(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 Facilities.
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; or
(c) with the prior written consent of us and the Company.
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) 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) 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 Facilities 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 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 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 under this letter 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 under this
letter. The terms of this letter and your obligations under this
letter 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
Company 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:
(a) 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
(b) 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 the Company 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 is excluded.
(b) The Relevant Persons may enjoy the benefit of the terms of
paragraphs 6 and 9 subject to and in accordance with this
paragraph 10 and the provisions of the Third Parties Act.
(c) Notwithstanding any provisions of this letter, the parties to
this letter do not require the consent of any Relevant Person
or any member of the Group to rescind or vary this letter at
any time.
12. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by
and construed in accordance with the laws of England and the parties
submit to the non-exclusive jurisdiction of the English courts.
13. Definitions In this letter (including the acknowledgement set out
below):
"Confidential Information" means any information relating to the
Company, the Group, and the Facilities 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 after that date, 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 Company 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 Facilities.
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 Company and each other member of the Group
We acknowledge and agree to the above:
- -------------------------
For and on behalf of
[Potential New Lender]
SCHEDULE 10
EXISTING SECURITY
Company Lender Security Total Principal Amount of
Indebtedness Secured as of
30 June 2004
(millions of euro)
<s>
1. CEMEX Construction GE Capital (FKIT Equipment related with 1.263
Materials, L.P. 279,280) the Credit
2. CEMEX Construction Hampton Land related with the 0.338
Materials, L.P. Credit
3. Kosmos Cement Company First Corp (FKIT Equipment related with 0.035
101649) the Credit
4. Mineral Resource Met-South, Inc. Ash storage facility 0.248
Technologies, Inc.
5. Any security existing at
the date of this Agreement
constituted by the transfer
of shares or any other
instrument of title
representing an equity
participation in the Asia
Fund into a trust
----------------------------
1.883 and the security
under item 5
SCHEDULE 11
EXISTING NOTARISATIONS
Type of Agreement Borrower/Guarantor Maturity Date Total Principal Amount
of Indebtedness
notarised as of
30 June 2004
Bilateral lines Cemex Espana, S.A./n.a. Between Jan. and Dec. 2005 EUR 51,086,0291
Deferred purchase Aricemex S.A./n.a. July, 2005 EUR 961,619
price
- ------------------------------------------------------------------------------
1 Corresponds to the total committed amount under the facilities. Amount drawn
as of 06.30.04: EUR 18,712,797.
SCHEDULE 12
MATERIAL SUBSIDIARIES
Cemex Inc.
Cemex Corp.
Cemex Venezuela SACA
Vencement Investments
Construction Funding Corporation
SIGNATURES
THE COMPANY
CEMEX ESPANA, S.A.
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/Ramiro Villarreal
THE ORIGINAL GUARANTORS
CEMEX ESPANA, S.A.
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/Ramiro Villarreal
CEMEX CARACAS INVESTMENTS B.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/Ramiro Villarreal
CEMEX CARACAS II INVESTMENTS B.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/Ramiro Villarreal
CEMEX EGYPTIAN INVESTMENTS B.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/Ramiro Villarreal
CEMEX MANILA INVESTMENTS B.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/Ramiro Villarreal
CEMEX AMERICAN HOLDINGS B.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/Ramiro Villarreal
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: + 44 (20) 7774 4477
Attention: Javier Lazaro
THE AGENT
CITIBANK INTERNATIONAL PLC
By: /s/ CARLOS BARONA
Address: Loans Agency Office, 2nd Floor,
4 Harbour Exchange Square, London E14 9GE
Fax: 00 44 208 636 3824/3825
Attention: Ian Hayton
THE LENDERS
CITIBANK INTERNATIONAL PLC, SUCURSAL EN ESPANA
By: /s/ CARLOS BARONA
Address: C/Jose Ortega v Gasset 29, Madrid 28006, Spain
Fax: + 34 91 435 2811
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