Exhibit 4.15
EXECUTION VERSION
US$700,000,000
FACILITIES AGREEMENT
dated 27 June 2005
for
NEW SUNWARD HOLDING B.V.
as Borrower
CEMEX, S.A. DE C.V., CEMEX MEXICO,
S.A. DE C.V. and
EMPRESAS TOLTECA DE MEXICO, S.A. DE C.V.
as Guarantors
arranged by
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
BNP PARIBAS
and
CITIGROUP GLOBAL MARKETS, INC.
with
CITIBANK, N.A.
acting as Agent
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TERM AND REVOLVING FACILITIES AGREEMENT
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CONTENTS
Clause Page
1. Definitions And Interpretation..........................................4
2. The Facilities.........................................................27
3. Purpose................................................................27
4. Conditions Of Utilisation..............................................27
5. Utilisation............................................................30
6. Optional Currencies....................................................31
7. Repayment..............................................................32
8. Prepayment And Cancellation............................................32
9. Interest...............................................................35
10. Interest Periods.......................................................36
11. Changes To The Calculation Of Interest.................................37
12. Fees...................................................................38
13. Tax Gross Up And Indemnities..........................................39
14. Increased Costs........................................................41
15. Other Indemnities......................................................42
16. Mitigation By The Lenders..............................................43
17. Costs And Expenses.....................................................44
18. Guarantee And Indemnity................................................45
19. Representations........................................................48
20. Information Undertakings...............................................55
21. General Undertakings...................................................59
22. Events Of Default......................................................67
23. Changes To The Lenders.................................................71
24. Changes To The Obligors................................................75
25. Role Of The Agent And The Arranger.....................................77
26. Conduct Of Business By The Finance Parties.............................82
27. Sharing Among The Finance Parties......................................82
28. Payment Mechanics......................................................85
29. Set-Off................................................................87
30. Notices................................................................87
31. Calculations And Certificates..........................................91
32. Partial Invalidity.....................................................91
33. Remedies And Waivers...................................................91
34. Amendments And Waivers.................................................92
35. Counterparts...........................................................92
36. Governing Law..........................................................93
37. Enforcement............................................................93
38. Waiver Of Sovereign Immunity...........................................93
SCHEDULE 1 THE ORIGINAL PARTIES...............................................95
Part I The Original Obligors.......................................95
Part II The Original Lenders........................................97
SCHEDULE 2 CONDITIONS PRECEDENT...............................................98
Part I Conditions Precedent To Initial Utilisation.................98
Part II Conditions Precedent Required To Be Delivered By An
Additional Guarantor.......................................100
SCHEDULE 3 REQUESTS 102
Part I Utilisation Request............................................102
Part II Selection Notice..............................................104
SCHEDULE 4 MANDATORY COST FORMULAE...........................................105
SCHEDULE 5 FORM OF TRANSFER CERTIFICATE......................................108
SCHEDULE 6 FORM OF COMPLIANCE CERTIFICATE....................................110
SCHEDULE 7 FORM OF LMA CONFIDENTIALITY UNDERTAKING...........................111
SCHEDULE 8 TIMETABLE 117
SCHEDULE 9 FORM OF ACCESSION LETTER..........................................118
SCHEDULE 10 PERMITTED LIENS..................................................119
SCHEDULE 11 LITIGATION.......................................................122
SCHEDULE 12 MATERIAL SUBSIDIARIES............................................130
SCHEDULE 13 PROMISSORY NOTES.................................................131
PART I FORM OF FACILITY A NOTE....................................131
PART II FORM OF FACILITY B NOTE....................................135
THIS TERM AND REVOLVING FACILITIES AGREEMENT is dated 27 June 2005 and made
between:
(1) NEW SUNWARD HOLDING B.V. (the "Borrower");
(2) THE COMPANIES listed in Part IB of Schedule 1 (The Original Obligors)
as original guarantors (the " Original Guarantors");
(3) BANCO BILBAO VIZCAYA ARGENTARIA, S.A., BNP PARIBAS AND CITIGROUP GLOBAL
MARKETS, INC. 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, N.A., acting through its Delaware Branch, as agent of the
other Finance Parties (the "Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Accession Letter" means a document substantially in the form set out
in Schedule 9 (Form of Accession Letter).
"Acquired Subsidiary" means any Subsidiary acquired by any Obligor or
by any Subsidiary of any Obligor after the date hereof in an
Acquisition, and any Subsidiaries of such Acquired Subsidiary on the
date of such Acquisition.
"Acquiring Subsidiary" means any Subsidiary formed by any Obligor or by
a Subsidiary of any Obligor solely for the purpose of participating as
the acquiring party in any Acquisition, and any Subsidiaries of such
Acquiring Subsidiary acquired in such Acquisition.
"Acquisition" means any merger, consolidation, acquisition or lease of
assets, acquisition of securities or business combination or
acquisition, or any two or more of such transactions, if upon the
completion of such transaction or transactions, any Obligor or any
Subsidiary thereof has acquired an interest in any Person who is deemed
to be a Subsidiary under this Agreement and was not a Subsidiary prior
thereto.
"Additional Cost Rate" has the meaning given to it in Schedule 4
(Mandatory Cost Formulae).
"Additional Guarantor" means a company which becomes an Additional
Guarantor in accordance with Clause 24 (Changes to the Obligors).
"Adjusted Consolidated Net Tangible Assets" means, with respect to any
Person, the total assets of such Person and its Subsidiaries (less
applicable depreciation, amortisation and other valuation reserves),
including any write-ups or restatements required under Applicable GAAP
(other than with respect to items referred to in clause (b) below),
minus (a) all current liabilities of such Person and its Subsidiaries
(excluding the current portion of long-term debt) and (b) all goodwill,
trade names, trademarks, licenses, concessions, patents, un-amortised
debt discount and expense and other intangibles, all as determined on a
consolidated basis in accordance with Applicable GAAP.
"Affiliate" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"Agency Fee Letter" means the dated 25 May 2005 between Citigroup
Global Markets, Inc., the Agent, the Borrower and Cemex Parent setting
out certain of the fees referred to in Clause 12.2 (Agency fee).
"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. London time on a
particular day.
"Applicable GAAP" means, with respect to any Person, Mexican GAAP or
other generally accepted accounting principles required to be applied
to such Person in the jurisdiction of its incorporation or organisation
and used in preparing such Person's financial statements.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"Authorised Signatory" means, in relation to any Obligor, any person
who is duly authorised and in respect of whom the Agent has received a
certificate signed by a director or another Authorised Signatory of
such Obligor setting out the name and signature of such person and
confirming such person's authority to act.
"Availability Period" means the period from and including the date of
this Agreement to and including:
(a) in respect of Facility A, the date falling 10 Business Days
after the date of this Agreement; and
(b) in respect of Facility B, the day which falls one month before
the Termination Date relating to Facility B.
"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 B
only, any participation in Facility B Loans which are due to be repaid
or prepaid on or before the proposed Utilisation Date.
"Available Facility" means, in relation to a Facility, the aggregate
for the time being of each Lender's Available Commitment in respect of
that Facility.
"Base Currency" means US dollars.
"Base Currency Amount" means in relation to a Utilisation, the amount
specified in the Utilisation Request delivered by the Borrower for that
Utilisation (or, if the amount requested is not denominated in the Base
Currency, that amount converted into the Base Currency at the Agent's
Spot Rate of Exchange on the date which is three Business Days before
the Utilisation Date) as adjusted to reflect any repayment, prepayment,
consolidation or division of a Utilisation.
"Board" means the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Break Costs" means the amount (if any) by which:
(a) the interest (excluding the applicable Margin) which a Lender
should have received for the period from the date of receipt
of all or any part of its participation in a Loan or Unpaid
Sum to the last day of the current Interest Period in respect
of that Loan or Unpaid Sum, had the principal amount or Unpaid
Sum received been paid on the last day of that Interest
Period;
exceeds:
(b) the amount which that Lender would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the Relevant
Interbank Market for a period starting on the day of receipt
or recovery if a Business Day and if received or recovered
before 2 pm London time (or, if not, on the Business Day
following receipt or recovery) and ending on the last day of
the current Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in Amsterdam and New York, 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) London
and 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, as to any Person, the obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted
for as capital leases on a balance sheet of such Person under
Applicable GAAP and, for the purposes of this Agreement, the amount of
such obligations at any time shall be the capitalised amount thereof at
such time determined in accordance with Applicable GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Cemex Parent" means CEMEX, S.A. de C.V., a company (sociedad anonima
de capital variable) incorporated in Mexico.
"Cemex Spain" means Cemex Espana, S.A., a company (sociedad anonima)
incorporated under the laws of Spain, No. Hoja-Registro Mercantil,
Madrid: M -156542, NIF A46/004214.
"Commitment" means a Facility A Commitment and/or Facility B
Commitment.
"Compliance Certificate" means a certificate substantially in the form
set out in Schedule 6 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 7
(Form of LMA Confidentiality Undertaking) or in any other form agreed
between the Borrower and the Agent.
"Consolidated Fixed Charge Coverage Ratio" means, for any Relevant
Period, the ratio of (a) EBITDA for such period to (b) Consolidated
Fixed Charges for such period.
"Consolidated Fixed Charges" means, for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for any Relevant
Period, and (b) to the extent not included in (a) above, payments
during such periods in respect of the financing costs of financial
derivatives in the form of equity swaps.
"Consolidated Interest Expense" means, for any period, the total gross
interest expense of Cemex Parent and its consolidated Subsidiaries
allocable to such period in accordance with Mexican GAAP.
"Consolidated Leverage Ratio" means, at any time during any fiscal
quarter, the ratio of (a) Consolidated Net Debt at such time to (b)
EBITDA for the Relevant Period immediately preceding such fiscal
quarter, which shall be calculated based on the most recently available
consolidated financial statements of Cemex Parent and its Subsidiaries
at such date.
"Consolidated Net Debt" means, at any date, the sum (without
duplication) of (a) the aggregate amount of all Debt of Cemex Parent
and its Subsidiaries at such date, plus (b) to the extent not included
in Debt, the aggregate amount of all derivative financing in the form
of equity swaps outstanding at such date (save to the extent cash
collateralised), minus (c) all Temporary Investments of Cemex Parent
and its Subsidiaries at such date.
"Contractual Obligation" as to any Person, any provision of any
security issued or guaranteed by such Person or of any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Person is a party or by which it or any of its
property is bound.
"CTW" means Cemex Trademarks Ltd., a commercial company organised and
existing under the laws of Switzerland.
"Debt" means, as to any Person at any time, without duplication:
(a) all obligations of such Person for borrowed money;
(b) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(c) all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable
arising in the ordinary course of business;
(d) all obligations of such Person as lessee under Capital Leases;
(e) all Debt of others secured by a Lien on any asset or property
of such Person, up to the value of such asset, as recorded in
such Person's most recent balance sheet;
(f) all obligations of such Person with respect to product
invoices incurred in connection with export financing; and
(g) all obligations of such Person under repurchase agreements for
the stock issued by such Person or another Person;
For the avoidance of doubt, this definition of Debt does not include
Derivatives. With respect to the Cemex Parent and its Subsidiaries, the
aggregate amount of Debt outstanding shall be adjusted by the Value of
Debt Currency Derivatives solely for the purposes of calculating the
Consolidated Leverage Ratio. If the Value of Debt Currency Derivatives
is a positive mark-to-market valuation for Cemex Parent and its
Subsidiaries, then Debt shall decrease accordingly, and if the Value of
Debt Currency Derivatives is a negative mark-to-market valuation for
Cemex Parent and its subsidiaries, then Debt shall increase by the
absolute value thereof.
"Debt Currency Derivatives" means derivatives of the Cemex Parent and
its Subsidiaries related to currency entered into for the purposes of
hedging exposures under outstanding Debt of the Cemex Parent and its
Subsidiaries, including, but not limited to, cross-currency swaps and
currency forwards.
"Default" means an Event of Default or any event or circumstance
specified in Clause 22 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"Derivatives" means any type of derivative obligations, including,
without limitation, equity forwards, capital hedges, cross-currency
swaps, currency forwards, interest rate swaps and swaptions.
"Disposition" means, with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition thereof. The terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Dutch Banking Act" means the Dutch Act of the Supervision of Credit
System of 1992 (Wet toezicht kredietwezen 1992), as amended or
re-enacted from time to time.
"Dutch Central Bank" means the central bank of The Netherlands (De
Nederlandsche Bank).
"Dutch Exemption Regulation" means the Exemption Regulation of the
Dutch Minister of Finance of 26 June 2002 (Vrijstellingsregeling Wtk
1992), as amended or re-enacted from time to time.
"Dutch Policy Guidelines" means the Dutch Central Bank's policy
guidelines of 2 January 2005 issued in relation to the Dutch Exemption
Regulation (beleidsregel kernbegrippen markttoetreding en handhaving
Wtk 1992), as amended or restated from time to time.
"EBITDA" means, for any period, the sum for Cemex Parent and its
Subsidiaries, determined on a consolidated basis of (a) operating
income (utilidad de operacion), (b) cash interest income and (c)
depreciation and amortisation expense, in each case determined in
accordance with Mexican GAAP consistently applied for such period. For
the purposes of calculating EBITDA for any Relevant Period pursuant to
any determination of Consolidated Leverage Ratio (but not Consolidated
Fixed Charge Coverage Ratio), (i) if, at any time during such Relevant
Period, Cemex Parent or any of its Subsidiaries shall have made any
Material Disposition, the EBITDA for such Relevant Period shall be
reduced by an amount equal to the EBITDA (if positive) attributable to
the property that is the subject of such Material Disposition for such
Relevant Period (but when the Material Disposition is by way of a
lease, income received by the Borrower or any of its Subsidiaries under
such lease shall be included in the EBITDA) and (ii) if, at any time
during such Relevant Period, Cemex Parent or any of its Subsidiaries
shall have made any Material Acquisition, the EBITDA for such Relevant
Period shall be calculated after giving pro forma effect thereto
(including the incurrence or assumption of any Debt) as if such
Material Acquisition had occurred on the first day of such Relevant
Period. Additionally, if since the beginning of such Relevant Period
any Person that subsequently shall have become a Subsidiary of Cemex
Parent or was merged or consolidated with Cemex Parent or any of its
Subsidiaries as a result of a Material Acquisition occurring during
such Relevant Period shall have made any Disposition or Acquisition of
property that would have required an adjustment pursuant to clause (i)
or (ii) above if made by Cemex Parent or any of its Subsidiaries during
such Relevant Period, the EBITDA for such period shall be calculated
after giving pro forma effect thereto as if such Disposition or
Acquisition had occurred on the first day of such Relevant Period.
"Environmental Action" means any audit procedure, action, suit, demand,
demand letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including (a) by any Governmental Authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any Governmental Authority or any third party for
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, technical standard (norma tecnica or
norma oficial Mexicana), code, order, judgment, decree or judicial
agency interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural resources,
including those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous
Materials.
"Environmental Permit" means any permit, approval, identification
number, licence or other authorization required under any Environmental
Law.
"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 11.00 a.m. (Brussels 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 22 (Events of Default).
"Exchange Act" means the U.S. Securities Exchange Act of 1943, as
amended.
"Existing NSH Facility Agreement" means the US$1,150,000,000 term loan
agreement dated October 15, 2003 and made between, amongst others, the
Borrower as borrower, the Guarantors as guarantors and Citibank N.A. as
administration agent.
"Facility" means Facility A or Facility B.
"Facility A" means the multicurrency term loan facility made available
under this Agreement as described in paragraph (a) of Clause 2.1 (The
Facilities).
"Facility A Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility A
Commitment" in Part II of Schedule 1 (The Original Lenders)
and the amount of any other Facility A Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility A Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility A Loan" means a loan made or to be made under Facility A or
the principal amount outstanding for the time being of that loan.
"Facility A Note" means a promissory note of the Borrower substantially
in the form of Part I of Schedule 13 (Form of Facility A Note) relating
to amounts to be drawn under Facility A and reflecting the terms of
this Agreement.
"Facility A Repayment Date" means the day falling 24 Months after the
date of this Agreement.
"Facility B" means the multicurrency revolving loan facility made
available under this Agreement as described in paragraph (b) of Clause
2.1 (The Facilities).
"Facility B Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility B
Commitment" in Part II of Schedule 1 (The Original Lenders)
and the amount of any other Facility B Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility B Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility B Loan" means a loan made or to be made under Facility B or
the principal amount outstanding for the time being of that loan.
"Facility B Note" means a promissory note of the Borrower substantially
in the form of Part II of Schedule 13 (Form of Facility B Note)
relating to amounts to be drawn under Facility B and reflecting the
terms of this Agreement.
"Facility Office" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"FAS 140" means Financial Accounting Standards Board Statement No. 140
or any Statement replacing the same, in each case as amended, modified
or supplemented from time to time.
"Fee Letter" means the fee letter dated 25 May 2005 between the
Arrangers, the Borrower and Cemex Parent setting out certain of the
fees referred to in Clause 12 (Fees).
"Finance Document" means this Agreement, any Note, any Accession
Letter, the Fee Letter, the Agency Fee Letter and any other document
designated as a "Finance Document" by the Agent and the Borrower.
"Finance Party" means the Agent, the Arranger or a Lender.
"First Utilisation Date" means the date on which the first Utilisation
is made under this Agreement.
"Governmental Authority" means any branch of power or government or any
state, department or other political subdivision thereof, or any
governmental body, agency, authority (including any central bank or
taxing or environmental authority), any entity or instrumentality
(including any court or tribunal) exercising executive, legislative,
judicial, regulatory, administrative or investigative functions of or
pertaining to government.
"Group" means the Borrower and each of its Subsidiaries for the time
being.
"Guarantors" means the Original Guarantors and any Additional Guarantor
other than any such Original Guarantor or Additional Guarantor which
has ceased to be a Guarantor pursuant to Clause 24.3 (Resignation of
Guarantor) and has not subsequently become an Additional Guarantor
pursuant to Clause 24.2 (Additional Guarantors) and "Guarantor" means
any of them.
"Hazardous Materials" means (a) radioactive materials,
asbestos-containing materials, polychlorinated biphenyls, radon gas and
(b) any other chemicals, materials or substances designated, classified
or regulated as hazardous or toxic or as a pollutant or contaminant
under any applicable Environmental Law.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Intellectual Property" means the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under Mexican, multinational or foreign laws or otherwise,
including copyrights, copyright licences, patents, patent licences,
trademarks, trademark licences, technology, know-how and processes,
trade secrets, any applications associated with the foregoing, and all
rights to sue at law or in equity for any infringement or other
impairment thereof, including the right to receive all proceeds and
damages therefrom.
"Interest Period" means, in relation to a Loan, each period determined
in accordance with Clause 10 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 9.3
(Default interest).
"International Accounting Standards" means the accounting standards
approved by the International Accounting Standards Board from time to
time.
"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 23 (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 11.00 a.m. (New York time) on the Quotation Day for the offering
of deposits in the currency of that Loan and for a period comparable to
the Interest Period for that Loan.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset. Any member of the Group shall be deemed to own, subject to a
Lien, any asset which it has acquired or holds subject to the interest
of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset, or any
account receivable transferred by it with recourse (including any such
transfer subject to a hold back or similar arrangement that effectively
imposes the risk of collectability on the transferor).
"LMA" means the Loan Market Association.
"Loan" means a Facility A Loan or a Facility B Loan.
"Majority Lenders" means:
(a) if there are no Loans then outstanding, a Lender or Lenders
whose Commitments aggregate more than 51% of the Total
Commitments (or, if the Total Commitments have been reduced to
zero, aggregated more than 51% of the Total Commitments
immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose undrawn
Commitments and participations in the Loans then outstanding
aggregate more than 51% of all the undrawn Commitments and
Loans then outstanding. "Mandatory Cost" means the percentage
rate per annum calculated in accordance with Schedule 4
(Mandatory Cost Formulae).
"Margin" means in relation to any Loan the percentage rate per annum
determined pursuant to the table set out below:
------------------------- ------------------------
Facility Margin % p.a.
------------------------- ------------------------
Facility A 0.35
------------------------- ------------------------
Facility B 0.425
------------------------- ------------------------
(a) in relation to any Unpaid Sum the percentage rate per annum
specified above applicable to the Facility in relation to
which that Unpaid Sum arises or if such Unpaid Sum does not
arise in relation to a particular Facility, the rate per annum
specified above applicable to the Facility to which the Agent
reasonably determines the Unpaid Sum most closely relates, or
if none, the highest rate per annum specified above,
but if:
(i) no Default has occurred and is continuing; and
(ii) for Cemex Parent and its Subsidiaries, the Consolidated
Leverage Ratio in respect of the most recently completed
Relevant Period is within a range set out below,
then the Margin for each Loan under each Facility (and for any Unpaid
Sum related to that Facility) will be the percentage rate per annum set
out below opposite that range:
------------------------------------ ----------------------------------
Consolidated Leverage Ratio Margin
% p.a.
------------------------------------ ----------------------------------
Facility A Facility B
------------------------------------ ---------------- -----------------
Greater than or equal to 3.0:1 0.35 0.425
------------------------------------ ---------------- -----------------
Less than 3.0:1 but greater than 0.30 0.375
or equal to 2.5:1
------------------------------------ ---------------- -----------------
Less than 2.5:1 but greater than 0.25 0.325
or equal to 2.0:1
------------------------------------ ---------------- -----------------
Less than 2.0:1 0.20 0.275
------------------------------------ ---------------- -----------------
However any increase or decrease in the Margin shall take effect on the
date (the "reset date") which is the first day of the next Interest
Period for that Loan following receipt by the Agent of the Compliance
Certificate for that Relevant Period pursuant to Clause 20.2
(Compliance Certificate) and in the case of a then current Interest
Period will apply to the whole of such Interest Period unless any
payments of interest have already been made in which case any
adjustments to the Margin will apply only from the date of such
payment.
"Material Acquisition" means any (a) acquisition of property or series
of related acquisitions of property that constitutes assets comprising
all or substantially all of an operating unit, division or line of
business or (b) acquisition of or other investment in the Capital Stock
of any Subsidiary of Cemex Parent or any Person which becomes a
Subsidiary of Cemex Parent or is merged or consolidated with any member
of the Group, in each case, which involves the payment of aggregate
consideration by any one or more members of the Group in excess of
US$25,000,000 (or the equivalent thereof in other currencies).
"Material Adverse Effect" means a material adverse effect on:
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Group taken as a
whole;
(b) the validity or enforceability of this Agreement or any of the
Notes or the rights and remedies of any Finance Party under
the Finance Documents; or
(c) the ability of any Obligor to perform its obligations under
Finance Documents.
"Material Debt" means Debt (other than the Loans) of Cemex Parent
and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, in an aggregate principal amount outstanding
exceeding US$50,000,000 (or the equivalent thereof in other
currencies).
"Material Disposition" means any Disposition of property or series of
related Dispositions of property that yields gross proceeds to any one
or more members of the Group in excess of US$50,000,000 (or the
equivalent thereof in other currencies).
"Material Subsidiary" means, at any date:
(a) Cemex Spain, each Trademark Company and each Obligor that is a
Subsidiary of Cemex Parent; and
(b) each other Subsidiary of any Obligor (if any) (i) the assets
of which, together with those of its Subsidiaries, on a
consolidated basis, without duplication, constitute five per
cent. or more of the consolidated assets of Cemex Parent and
its Subsidiaries as of the end of the then most recently ended
fiscal quarter or (ii) the operating profit of which, together
with that of its Subsidiaries, on a consolidated basis without
duplication, constitutes five per cent. or more of the
consolidated operating profits of Cemex Parent and its
Subsidiaries for the then most recently ended fiscal quarter
for which quarterly financial statements have been prepared.
"Mexican GAAP" means generally accepted accounting principles in Mexico
as in effect from time to time, except that for purposes of Clause
21.13 (Financial condition covenants), Mexican GAAP shall be determined
on the basis of such principles in effect as of the date of, and
applied in the preparation of, the audited financial statements of
Cemex Parent and its consolidated Subsidiaries as of and for the year
ended 31 December 2004. In the event that any change in Mexican GAAP
shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as
to equitably reflect such change in Mexican GAAP with the desired
result that the criteria for evaluating the financial condition of
Cemex Parent and its consolidated Subsidiaries shall be the same after
such change as if such change had not been made. Until such time an
amendment shall have been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated
or construed as if such change in Mexican GAAP had not occurred.
"Mexico" means the United Mexican States.
"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) if the numerically corresponding day is not a Business Day,
that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one,
or if there is not, on the immediately preceding Business Day;
and
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"Monthly" shall be construed accordingly.
"New Lender" has the meaning set out in Clause 23.1 (Assignments and
transfers by the Lenders).
"Note" means a Facility A Note or a Facility B Note as the case may be.
"Obligations" means:
(a) as to the Borrower, all of its indebtedness, obligations and
liabilities of the Borrower to the Lenders and the Agent now
or in the future existing under or in connection with the
Finance Documents, whether direct or indirect, absolute or
contingent, due or to become due; and
(b) as to each Guarantor, all of its indebtedness, obligations and
liabilities of such Guarantor to the Lenders and the Agent now
or in the future existing under or in connection with the
Finance Documents, in each case, whether direct or indirect,
absolute or contingent, due or to become due.
"Obligors" means the Borrower and the Guarantors and "Obligor" means
any of them.
"Off-Balance-Sheet Transaction" means any financing transaction of any
Person not reflected as Debt on the balance sheet of such Person, but
being structured in a way that may result in payment obligations by
such Person.
"Optional Currency" means a currency (other than the Base Currency)
which complies with the conditions set out in Clause 4.3 (Conditions
relating to Optional Currencies).
"Original Financial Statements" means:
(a) in relation to the Borrower, its audited unconsolidated
financial statements for its financial year ended 31 December
2004;
(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 2004 (if available); and
(c) in relation to any other Obligor, its most recent audited
financial statements prior to its becoming a Party.
"Participating Member State" means any member state of the European
Union that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Union relating to Economic
and Monetary Union.
"Party" means a party to this Agreement.
"Permitted Lien" has the meaning given to that term in Clause 21.14
(Liens).
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or other business entity, or
Governmental Authority, whether or not having a separate legal
personality.
"Process Agent" means Cemex UK Limited of Cemex House, Coldharbour
Lane, Thorpe, Egham, Surrey TW20 8TO, Fax: (+44) 01932 568933, Attn:
The Secretary.
"Professional Market Party" means a professional market party
(professionele marktpartij) as defined from time to time under the
Dutch Exemption Regulation. As of the date hereof, only the following
are Professional Market Parties:
(a) banks, insurance companies, securities firms, investment
institutions and pension funds that are (i) supervised or
licensed under Dutch law or (ii) established and acting under
supervision in a European Union member state (other than The
Netherlands), Hungary, Monaco, Poland, Puerto Rico, Saudi
Arabia, Slovakia, Czech Republic, Turkey, South Korea, the
United States, Japan, Australia, Canada, Mexico, New Zealand
or Switzerland;
(b) investment institutions that offer their participation rights
exclusively to professional market parties and are not
required to be supervised or licensed under Dutch law;
(c) the State of The Netherlands, the Dutch Central Bank, a
foreign central government body, a foreign central bank, Dutch
regional and local governments and comparable foreign
de-centralised government bodies, international treaty
organisations and supranational organisations;
(d) enterprises or entities with total assets of at least
(euro)500,000,000 (or the equivalent thereof in other
currencies) as per the balance sheet of such entity as of the
year-end preceding the date of the making of, or acceptance of
an assignment of (as the case may be), any Loan hereunder;
(e) enterprises, entities or individuals with net assets (eigen
vermogen) within the meaning of the Dutch Exemption Regulation
of at least (euro)10,000,000 (or the equivalent thereof in
other currencies) as of the year-end preceding the date of the
making of, or acceptance of an assignment of (as the case may
be), any Loan hereunder and who or which have been active in
the financial markets on average twice a month over a period
of at least two consecutive years preceding such date;
(f) subsidiaries of the entities referred to under paragraph (a)
above, provided that such subsidiaries are subject to
supervision; and
(g) an enterprise or institution that has a rating from or that
issues securities having a rating from a rating agency
recognised for such purposes by the Dutch Central Bank.
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by any member of the Group
pursuant to which such member of the Group may sell, convey or
otherwise transfer to a Special Purpose Vehicle (in the case of a
transfer by Cemex Parent or any other Seller) and any other Person (in
the case of a transfer by a Special Purpose Vehicle), or may grant a
security interest in, any Receivables Program Assets (whether now
existing or arising in the future); provided that:
(a) no portion of the indebtedness or any other obligations
(contingent or otherwise) of a Special Purpose Vehicle (i) is
guaranteed by Cemex Parent or any other Seller or (ii) is
recourse to or obligates Cemex Parent or any other Seller in
any way such that the requirements for off balance sheet
treatment under FAS 140 are not satisfied; and
(b) Cemex Parent and the other Sellers do not have any obligation
to maintain or preserve the financial condition of a Special
Purpose Vehicle or cause such entity to achieve certain levels
of operating results.
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is sterling) one Business Day before 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).
"Receivables" means all rights of Cemex Parent or any other Seller to
payments (whether constituting accounts, chattel paper, instruments,
general intangibles or otherwise, and including the right to payment of
any interest or finance charges), which rights are identified in the
accounting records of Cemex Parent or such Seller as accounts
receivable.
"Receivables Documents" means:
(a) a receivables purchase agreement, pooling and servicing
agreement, credit agreement, agreements to acquire undivided
interests in or other agreement to transfer, or create a
security interest in, Receivables Program Assets, in each case
as amended, modified, supplemented or restated and in effect
from time to time entered into by Cemex Parent, another Seller
and/or a Special Purpose Vehicle, and
(b) each other instrument, agreement and other document entered
into by Cemex Parent, any other Seller or a Special Purpose
Vehicle relating to the transactions contemplated by the items
referred to in clause (a) above, in each case as amended,
modified, supplemented or restated and in effect from time to
time.
"Receivables Program Assets" means:
(a) all Receivables which are described as being transferred by
Cemex Parent, another Seller or a Special Purpose Vehicle
pursuant to the Receivables Documents;
(b) all Receivables Related Assets in respect of such Receivables;
and
(c) all collections (including recoveries) and other proceeds of
the assets described in the foregoing clauses.
"Receivables Program Obligations" means:
(a) notes, trust certificates, undivided interests, partnership
interests or other interests representing the right to be paid
a specified principal amount from the Receivables Program
Assets; and
(b) related obligations of Cemex Parent, a Subsidiary of Cemex
Parent or a Special Purpose Vehicle (including, without
limitation, rights in respect of interest or yield hedging
obligations, breach of warranty or covenant claims and expense
reimbursement and indemnity provisions).
"Receivables Related Assets" means with respect to any Receivables:
(a) any rights arising under the documentation governing or
relating to such Receivables (including rights in respect of
Liens securing such Receivables);
(b) any proceeds of such Receivables; and
(c) other assets which are customarily transferred or in respect
of which security interests are customarily granted in
connection with asset securitisation transactions involving
accounts receivable.
"Reference Banks" means, the principal London offices of Citibank N.A.,
BNP Paribas and Banco Bilbao Vizcaya Argentaria, S.A.or such other
banks as may be appointed by the Agent in consultation with the
Borrower.
"Regulation T, U or X" means Regulation T, U or X, respectively, of the
Board as in effect from time to time and any successor to all or a
portion thereof.
"Relevant Interbank Market" means, in relation to euro, the European
interbank market, and, in relation to any other currency, the London
interbank market.
"Relevant Period" means the last four consecutive fiscal quarters of
Cemex Parent and its Subsidiaries.
"Repeating Representations" means each of the representations set out
in Clauses 19.1 (Corporate Existence and Power) to Clause 19.4
(Consents/Approvals), Clause 19.8 (Direct Obligations: Pari Passu) to
Clause 19.11 (No default) and Clause 19.13 (Financial
statements/condition).
"Requirement of Law" means, as to any Person, any law, ordinance, rule,
regulation or requirement of any Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Restricted Payments" has the meaning given to that term in Clause
21.17 (Restricted Payments).
"Restricted Subsidiary" means at any time, any of:
(a) Cemex Mexico, S.A. de C.V.;
(b) Empresas Tolteca de Mexico, S.A. de C.V.;
(c) any Trademark Company;
(d) any Material Subsidiary of Cemex Parent that, as of the date
hereof, (i) is incorporated or organised in Mexico, (ii) has
its principal place of business in Mexico or (iii) conducts a
majority of its business or holds a majority of its assets in
Mexico; and
any Subsidiary of Cemex Parent that at such time owns or operates any
portion, beyond a de minimis amount, of the assets owned or operated as
of the date hereof by the Persons described in clauses (a) through (d).
"Revaluation Date" means each of the following: (a) in connection with
the making of any Loan, each Quotation Date relating to that Loan; (b)
the date of on which any prepayment is made pursuant to Clause 8.6
(Mandatory prepayment) and (c) such additional dates as the Agent or
the relevant Lender shall deem necessary.
"Rollover Loan" means one or more Facility B Loans:
(a) made or to be made on the same day that a maturing Facility B
Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Facility B Loan;
(c) in the same currency as the maturing Facility B Loan (unless
it arose as a result of the operation of Clause 6.2
(Unavailability of a currency)); and
(d) made or to be made for the purpose of refinancing a maturing
Facility B Loan.
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers' Association
Interest Settlement Rate for the relevant currency and period;
and
(b) in relation to EURIBOR, the percentage rate per annum
determined by the Banking Federation of the European Union for
the relevant period,
displayed on the appropriate page of the Reuters screen. If the agreed
page is replaced or service ceases to be available, the Agent may
specify another page or service displaying the appropriate rate after
consultation with the Borrower and the Lenders.
"SEC" means the U.S. Securities and Exchange Commission, any successor
thereto and any analogous Governmental Authority.
"Selection Notice" means a notice substantially in the form set out in
Part II of Schedule 3 (Selection Notice) given in accordance with
Clause 10 (Interest Periods) in relation to Facility A.
"Seller" means Cemex Parent or any Subsidiary of Cemex Parent or other
Affiliate of Cemex Parent (other than a Subsidiary or Affiliate that is
a Special Purpose Vehicle) which is a party to a Receivables Document.
"Special Purpose Vehicle" means a trust, partnership or other special
purpose Person established by any member of the Group to implement a
Qualified Receivables Transaction.
"Specified Time" means a time determined in accordance with Schedule 8
(Timetables).
"Subsidiary" means with respect to any Person, any corporation,
partnership, joint venture, limited liability company, trust, estate or
other entity of which (or in which) more than 50% of:
(a) in the case of a corporation, the issued and outstanding
capital stock having ordinary voting power to elect a majority
of the board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power
upon the occurrence of any contingency not in the control of
such Person);
(b) in the case of a limited liability company, partnership or
joint venture, the interest in the capital or profits of such
limited liability company, partnership or joint venture; or
(c) in the case of a trust or estate, the beneficial interest in
such trust or estate, is at the time directly or indirectly
owned or controlled by (i) such Person, (ii) such Person and
one or more of its other Subsidiaries or (iii) one or more of
such Person's other Subsidiaries. For purposes of determining
whether a trust formed in connection with a Qualified
Receivables Transaction is a Subsidiary, notes, trust
certificates, undivided interests, partnership interests or
other interests of the type described in clause (a) of the
definition of Receivables Program Obligations shall be counted
as beneficial interests in such trust.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the settlement
of payments in euro.
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"Taxes Act" means the Income and Corporation Taxes Act 1988.
"Temporary Investments" means, at any date, all amounts that would, in
conformity with Mexican GAAP consistently applied, be set forth
opposite the captions "cash and cash equivalents" ("efectivo y
equivalentes de efectivo") and/or "temporary investments" ("inversiones
temporales") on the consolidated balance sheet of Cemex Parent at such
date.
"Termination Date" means:
(a) in relation to Facility A, the day which is 24 Months after
the date of this Agreement;
(b) in relation to Facility B, the day which is 48 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 A
Commitments, the Total Facility B Commitments.
"Total Facility A Commitments" means the aggregate of the Facility A
Commitments, being US$250,000,000 at the date of this Agreement.
"Total Facility B Commitments" means the aggregate of the Facility B
Commitments, being US$250,000,000 at the date of this Agreement.
"Total Borrowings" means, without duplication, in respect of any
Person, the amount of all Debt of such Person plus the aggregate amount
of all payment obligations, contingent or otherwise, of such Person in
respect of Off-Balance-Sheet Transactions entered into by such Person.
"Total Net Worth of Cemex Spain" means, at any date, the shareholders'
equity of Cemex Spain and its Subsidiaries (including minority
interests) at such date, in accordance with Spanish GAAP.
"Trademark Companies" means collectively, CTW and any other Person at
any time conducting business or servicing a purpose similar to the
business and purposes of CTW as of the date hereof, with respect to
Intellectual Property owned or held under license by CTW as of the date
hereof, and any of their Successors or transferees in the event of a
merger or consolidation of any such Person or the transfer, conveyance,
sale, lease or other disposition of all or substantially all of its
properties or assets in accordance with Clause 21.15 (Consolidations
and mergers).
"Transfer Certificate" means a certificate substantially in the form
set out in Schedule 5 (Form of Transfer Certificate) or any other form
agreed between the Agent and the Borrower.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer
Certificate; and
(b) the date on which the Agent executes the Transfer Certificate.
"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).
"Value of Debt Currency Derivatives" means, on any given date, the
aggregate mark-to-market value of Debt Currency Derivatives, expressed
as a positive number (if, on a mark-to-market basis, such aggregate
amount reflects a net amount owed to Cemex Parent and its Subsidiaries)
or as a negative number (if, on a mark-to-market basis, such aggregate
amount reflects a net amount owed by Cemex Parent and its
Subsidiaries).
"VAT" means value added tax as provided for in the Value Added Tax Act
1994 and any other tax of a similar nature.
"Verifiable Professional Market Party" means a Professional Market
Party whose status as such may be determined on the basis of:
(a) its entry in a public register (including on-line registers
available on the internet) of the Dutch Central Bank;
(b) its rating as provided by a rating agency recognised for such
purposes by the Dutch Central Bank and as it appears from any
public register and/or written statement of such rating
agency;
(c) its balance sheet, as confirmed by an auditor's statement
showing a value of its assets as per the last day of the
preceding calendar year of at least (euro)500,000,000 (or such
other amount and/or at such other time as may be required
pursuant to the Dutch Exemption Regulation); or
(d) its entry in a public register published by a regulatory
(other than the Dutch Central Bank) of a country as referred
to in Section 1(e)(11) of the Dutch Exemption Regulation,
exercising supervision over the Professional Market Party.
1.2 Construction
(a) Unless a contrary indication appears any reference in this
Agreement to:
(i) the "Agent", the "Arranger", any "Finance Party", any
"Lender", any "Obligor" or any "Party" shall be
construed so as to include its successors in title,
permitted assigns and permitted transferees;
(ii) a document in "agreed form" is a document which is
initialled by or on behalf of the Borrower and the
Agent or the Arranger;
(iii) "assets" includes present and future properties,
revenues and rights of every description;
(iv) the "European interbank market" means the interbank
market for euro operating in Participating Member
States;
(v) a "Finance Document" or any other agreement or
instrument is a reference to that Finance Document or
other agreement or instrument as amended or novated;
(vi) "indebtedness" includes any obligation (whether
incurred as principal or as surety) for the payment
or repayment of money, whether present or future,
actual or contingent;
(vii) a "participation" of a Lender in a Loan, means the
amount of such Loan which such Lender has made or is
to make available and thereafter that part of the
Loan which is owed to such Lender;
(viii) a "regulation" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law but, if not having the
force of law, with which persons who are subject
thereto are accustomed to comply) of any
governmental, intergovernmental or supranational
body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(ix) the "winding-up", "dissolution", "administration" or
"reorganisation" of a company or corporation shall be
construed so as to include any equivalent or
analogous proceedings (such as, in Spain, suspension
de pagos, quiebra, concurso or any other situacion
concursal and, in The Netherlands faillissement and
surseance van betaling) under the laws and
regulations of the jurisdiction in which such company
or corporation is incorporated or any jurisdiction in
which such company or corporation carries on business
including the seeking of liquidation, winding-up,
reorganisation, bankruptcy, dissolution,
administration, arrangement, adjustment, protection
or relief of debtors;
(x) a provision of law is a reference to that provision
as amended or re-enacted without material
modification;
(xi) a time of day is a reference to New York City time;
and
(xii) a reference to a clause, paragraph or schedule,
unless the context otherwise requires, is a reference
to a clause, a paragraph of or a schedule to this
Agreement.
(b) Section, Clause and Schedule headings are for ease of
reference only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) A Default (including an Event of Default) is "continuing" if
it has not been remedied or waived but, for the avoidance of
doubt, no breach of any of the financial covenants set out in
Clause 21.13 (Financial condition covenants) shall be capable
of being or be deemed to be remedied by virtue of the fact
that upon any subsequent testing of such covenants pursuant to
Clause 21.13 (Financial condition covenants), there is no
breach thereof.
(e) As used herein and in the other Finance Documents and any
certificate or other document made or delivered pursuant
hereto or thereto, (i) accounting terms relating to any member
of the Group not defined in Clause 1.1 (Definitions) and
accounting terms partly defined in Clause 1.1 (Definitions),
to the extent not defined, shall have the respective meanings
given to them under the Applicable GAAP, (ii) the words
"include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation", (iii) the word
"incur" shall be construed to mean incur, create, issue,
assume or otherwise become liable in respect of (and the words
"incurred" and "incurrence" shall have correlative meanings),
(iv) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash,
Capital Stock, securities, revenues, accounts, leasehold
interests and rights, and (v) reference to agreements or other
Contractual Obligations shall, unless otherwise specified, be
deemed to refer to such agreements or Contractual Obligations
as amended, supplemented, restated or otherwise modified form
time to time.
(f) In this Agreement, whenever pro forma effect is to be given to
any Material Acquisition or Material Disposition by any member
of the Group for purposes of including or excluding (as the
case may be) the amount of income or earnings or other amounts
relating thereto in any calculation under the definition of
EBITDA, the pro forma calculations will be determined in good
faith by a responsible financial or accounting officer of the
Borrower; provided that such pro forma calculations shall not
include any pro forma expense or cost reductions except to the
extent calculated on a basis consistent with Regulation S-X
under the U.S. Securities Act of 1933, as amended.
1.3 Currency Symbols and Definitions
"(pound)" and "sterling" denote the lawful currency of the United
Kingdom, "(euro)", "EUR" and "euro" mean the single currency unit of
the Participating Member States, "JPY" and "yen" denote the lawful
currency of Japan and "US$", "$" and "dollars" denote the 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 and conditions of this Agreement, the Lenders make
available to the Borrower:
(a) a two year multicurrency term loan facility in an aggregate
amount equal to the Total Facility A Commitments; and
(b) a four year multicurrency revolving loan facility in an
aggregate amount equal to the Total Facility B Commitments.
2.2 Finance Parties' rights and obligations
(a) The obligations of each Finance Party under the Finance
Documents are several. Failure by a Finance Party to perform
its obligations under the Finance Documents does not affect
the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations
of any other Finance Party under the Finance Documents.
(b) Except as otherwise stated in the Finance Documents, the
rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Finance Party
from an Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 Purpose
The Borrower shall apply all amounts borrowed by it under each Facility
towards:
(a) repayment of all amounts due and payable under the Existing
NSH Facility Agreement on the First Utilisation Date;
(b) repayment of Debt of the Borrower; and
(c) its general corporate purposes.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 Initial conditions precedent
The Borrower may not deliver the first Utilisation Request unless the
Agent has received all of the documents and other evidence listed in
Part I of Schedule 2 (Conditions Precedent to Initial Utilisation). The
Agent shall notify the Borrower and the Lenders promptly upon being so
satisfied.
4.2 Further conditions precedent
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; and
(b) the Repeating Representations which are or which are deemed to
be made or repeated by each Obligor on such date pursuant to
Clause 19.27 (Repetition) are true in all material respects.
The Lenders will only be obliged to comply with Clause 28.9 (Change of
currency) if, on the first day of an Interest Period, no Default is
continuing or would result from the change of currency and the
Repeating Representations to be made by each Obligor are true in all
material respects.
4.3 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, euro or yen 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 28.9
(Change of currency) if, on the first day of an Interest
Period, no Default is continuing or would result from the
change of currency and the Repeating Representations to be
made by each Obligor are true in all material respects.
(c) If the Agent has received a written request from the Borrower
for a currency to be approved under paragraph (a)(ii) above,
the Agent will confirm to the Borrower by the Specified Time:
(i) whether or not the Lenders have granted their
approval; and
(ii) if approval has been granted, the minimum amount
(and, if required, integral multiples) for any
subsequent Utilisation in that currency.
4.4 Maximum number of Loans
The Borrower may not deliver a Utilisation Request if as a result of
the proposed Utilisation:
(a) 2 or more Facility A Loans would be outstanding; or
(b) 7 or more Facility B Loans would be outstanding.
4.5 Promissory Notes
Each Loan made by each Lender shall be evidenced by a Facility A Note
or Facility B Note, as the case may be, executed by the Borrower and
each Guarantor, as "avalista," and representing the obligation of the
Borrower to pay to such Lender the unpaid principal amount of such
Loan, plus interest thereon as provided in Clause 9 (Interest). No
Lender shall, in connection with the enforcement of any Note, be
required to introduce into evidence or prove the existence of this
Agreement or the other Finance Documents (other than such Note) or the
making of Loans. In addition, the Borrower and each Guarantor shall,
from time to time at its expense, execute and/or deliver to each Lender
such amendments to the Notes, or replacement Notes, that may, in the
judgment of such Lender, be necessary and desirable in order to ensure
that the Notes duly reflect the terms of this Agreement. In addition,
and without limiting the foregoing, in the event that (i) any Interest
Period of a different duration from the prior Interest Period shall be
selected with respect to any Facility pursuant to Clause 10 (Interest
Periods) or (ii) the Termination Date of any Facility shall be extended
for any reason or (iii) any Lender assigns any of its rights and
benefits in respect of any Utilisation or transfers by novation any of
its rights, benefits and obligations in respect of any Utilisation
pursuant to Clause 23 (Changes to the Lenders), the Borrower and each
Guarantor shall, at its expense, execute and deliver to each Lender
under such Facility a replacement Note, which shall be subscribed in
the same manner and on the same terms and conditions as the Note
theretofore held by such Lender, and shall be delivered to each such
Lender no later than date on which any such change shall become
effective.
SECTION 3
UTILISATION
5. UTILISATION
5.1 Delivery of a Utilisation Request
The Borrower may utilise a Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day
within the Availability Period applicable to that
Facility;
(iii) the currency and amount of the Loan complies with
Clause 5.3 (Currency and amount); and
(iv) the proposed Interest Period complies with Clause 10
(Interest Periods).
(b) Only one Loan may be requested in each Utilisation Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be 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$10,000,000 or, if less, the relevant
Available Facility; and, if more, an integral
multiple of US$1,000,000 or
(ii) if the currency selected is sterling, euro or yen, a
minimum of the equivalent in the relevant Optional
Currency of US$10,000,000 (calculated at the Agent's
Spot Rate of Exchange) or, if less, the relevant
Available Facility and, if more, an integral multiple
of US$1,000,000; or
(iii) if the currency selected is an Optional Currency
other than sterling, euro or yen, the minimum amount
specified by the Agent pursuant to paragraph (c)(ii)
of Clause 4.3 (Conditions relating to Optional
Currencies) or, if less, the relevant Available
Facility.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met,
each Lender shall make its participation in each Loan
available by the Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be
equal to the proportion borne by its Available Commitment to
the relevant Available Facility immediately prior to making
the Loan.
(c) The Agent shall determine the Base Currency Amount of each
Loan which is to be made in an Optional Currency and shall
notify each Lender of the amount, currency and the Base
Currency Amount of each Loan and the amount of its
participation in that Loan, in each case by the Specified
Time.
6. OPTIONAL CURRENCIES
6.1 Selection of currency
The Borrower shall select the currency of each Loan in a Utilisation
Request.
6.2 Unavailability of a currency
If before the Specified Time on any Quotation Day:
(a) a Lender notifies the Agent that the Optional Currency
requested is not readily available to it in the amount
required, and provides in writing an objectively justified
reason therefor; or
(b) a Lender notifies the Agent that compliance with its
obligation to participate in a Loan in the proposed Optional
Currency would contravene a law or regulation applicable to
it,
the Agent will give notice to the Borrower to that effect by the
Specified Time on that day. In this event, any Lender that gives notice
pursuant to this Clause 6.2 will be required to participate in the Loan
in the Base Currency (in an amount equal to that Lender's proportion of
the Base Currency Amount, or in respect of a Rollover Loan, an amount
equal to that Lender's proportion of the Base Currency Amount of the
Rollover Loan that is due to be made) and its participation will be
treated as a separate Loan denominated in the Base Currency during that
Interest Period.
6.3 Agent's calculations
Each Lender's participation in a Loan will be determined in accordance
with paragraph (b) of Clause 5.4 (Lenders' participation).
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 Repayment of Facility A Loan
The Borrower shall repay the Facility A Loans in full on the
Termination Date.
7.2 Repayment of Facility B Loans
The Borrower shall repay each Facility B Loan on the last day of the
Interest Period relating to such Loan and, in any event, in full on the
Termination Date.
8. PREPAYMENT AND CANCELLATION
8.1 Illegality of a Lender
If, at any time, it is or will become unlawful in any applicable
jurisdiction for a Lender to perform any of its obligations as
contemplated by this Agreement or to fund or maintain its participation
in any Utilisation:
(a) that Lender shall promptly notify the Agent upon becoming
aware of that event and in any event at a time which permits
the Borrower to repay that Lender's participation on the date
such repayment is required to be made;
(b) upon the Agent notifying the Borrower, the Commitment of that
Lender will be immediately cancelled; and
(c) the Borrower shall on the last day of the Interest Period for
each Loan occurring after the Agent has notified the Borrower
or, if earlier, the date specified by the Lender in the notice
delivered to the Agent (being no earlier than the last day of
any applicable grace period permitted by law) repay that
Lender's participation in the Loans together with accrued
interest on and all other amounts owing to that Lender under
the Finance Documents.
8.2 Voluntary cancellation
The Borrower may if it gives the Agent not less than three Business
Days' (or such shorter period as the Majority Lenders in respect of the
Facility B to which such cancellation relates may agree) prior notice,
cancel the whole or any part (being a minimum amount of US$10,000,000
and, if more, an integral multiple of US$1,000,000) of Facility B. Any
cancellation under this Clause 8.2 shall reduce rateably the
Commitments of the Lenders under Facility B.
8.3 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.
8.4 Voluntary prepayment of Loans
The Borrower may, if it gives the Agent not less than three 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$10,000,000 and,
if more, an integral multiple of US$1,000,000).
8.5 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 13.2 (Tax gross-up) solely as a result of the
application of a withholding tax rate higher than the
lowest withholding tax rate applicable in the
relevant jurisdiction; or
(ii) any Lender claims indemnification from an Obligor
under Clause 13.3 (Tax indemnity) or Clause 14.1
(Increased costs),
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent
notice of cancellation of the Commitment of that Lender and
its intention to procure the repayment of that Lender's
participation in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
relevant Commitment of that Lender shall immediately be
reduced to zero.
(c) On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (a) above (or, if
earlier, the date specified by the Borrower in that notice),
the Borrower shall repay that Lender's participation in the
Loans to which such Interest Period relates.
8.6 Mandatory prepayment
If on any date the Agent notifies the Borrower that the Base Currency
Amount in relation to Facility B (determined as of the most recent
Revaluation Date) shall exceed 103% of the Total Commitments, the
Borrower shall as soon as practicable, but in any event no later than
five Business Days after receipt of such notice, prepay the outstanding
principal amount of any Loans owing by the Borrower in an aggregate
amount sufficient to reduce such sum to an amount not to exceed 100% of
the Total Facility B Commitments on such date, together with any
interest and other amounts accrued to the date of such prepayment on
the aggregate principal amount of the Loan(s) prepaid. The Agent shall
give prompt notice of any prepayment required under this Clause 8.6 to
the Borrower, and shall provide prompt notice to the Borrower of any
such notice of mandatory prepayment the Agent receives from any Lender.
Any such prepayment shall be allocated at the Lender's discretion.
8.7 Restrictions
(a) Any notice of cancellation or prepayment given by any Party
under this Clause 8 shall be irrevocable and, unless a
contrary indication appears in this Agreement, shall specify
the date or dates upon which the relevant cancellation or
prepayment is to be made and the amount of that cancellation
or prepayment.
(b) Any prepayment under this Agreement shall be made together
with accrued interest on the amount prepaid and, subject to
any Break Costs, without premium or penalty.
(c) The Borrower may not reborrow any part of Facility A which is
prepaid.
(d) Unless a contrary indication appears in the Agreement, any
part of Facility B which is prepaid may be re-borrowed in
accordance with the terms of this Agreement.
(e) The Borrower shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except at
the times and in the manner expressly provided for in this
Agreement.
(f) No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated.
(g) If the Agent receives a notice under this Clause 8 it shall
promptly forward a copy of that notice to either the Borrower
or the affected Lenders, as appropriate.
SECTION 5
COSTS OF UTILISATION
9. INTEREST
9.1 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.
9.2 Payment of interest
On the last day of each Interest Period relating to a Loan, the
Borrower shall pay accrued interest on the Loan to which that Interest
Period relates (and, if the Interest Period is longer than six Months,
on the dates falling at six Monthly intervals after the first day of
that Interest Period).
9.3 Default interest
(a) If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual
payment (both before and after judgment) at a rate which,
subject to paragraph (b) below, is two per cent higher than
the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Loan in
the currency of the overdue amount for successive Interest
Periods, each of a duration of one Month. Any interest
accruing under this Clause 9.3 shall be immediately payable by
the Obligor on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which
became due on a day which was not the last day of an Interest
Period relating to that Loan:
(i) the first Interest Period for that overdue amount
shall have a duration equal to the unexpired portion
of the current Interest Period relating to that Loan;
and
(ii) the rate of interest applying to the overdue amount
during that first Interest Period shall be two per
cent. higher than the rate which would have applied
if the overdue amount had not become due.
(c) Default interest (if unpaid) arising on an overdue amount will
be compounded with the overdue amount at the end of each
Interest Period applicable to that overdue amount but will
remain immediately due and payable.
9.4 Notification of rates of interest
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
10. INTEREST PERIODS
10.1 Selection of Interest Periods
(a) The Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan or (if the Loan is a
Facility A Loan and has already been borrowed) in a Selection
Notice.
(b) Each Selection Notice is irrevocable and must be delivered to
the Agent by the Borrower not later than the Specified Time.
(c) If the Borrower fails to deliver a Selection Notice to the
Agent in accordance with paragraph (b) above, the relevant
Interest Period will be one Month.
(d) Subject to this Clause 10, the Borrower may select an Interest
Period of one, two, three or six Months, or any other period
agreed between the Borrower and the Agent (acting on the
instructions of all the Lenders participating in the relevant
Facility).
(e) An Interest Period for a Loan shall not extend beyond the
Termination Date applicable to its Facility.
(f) Each Interest Period for a Facility A 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) A Facility B Loan has one Interest Period only.
10.2 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
10.3 Consolidation and division of Facility A Loans
(a) Subject to paragraph (b) below, if two or more Interest
Periods relate to Facility A Loans:
(i) in the same currency;
(ii) of the same period; and
(iii) ending on the same date,
those Facility A Loans will, unless the Borrower specifies to
the contrary in the Selection Notice for the next Interest
Period, be consolidated into, and be treated as, a single
Facility A Loan on the last day of the Interest Period.
(b) Subject to Clause 4.4 (Maximum number of Loans), and Clause
5.3 (Currency and amount) if the Borrower requests in a
Selection Notice that a Facility A Loan be divided into two or
more Facility A Loans, that Facility A Loan will, on the last
day of its Interest Period, be so divided into the Base
Currency Amounts specified in that Selection Notice, being an
aggregate Base Currency Amount equal to the Base Currency
Amount of the Facility A Loan immediately before its division.
11. CHANGES TO THE CALCULATION OF INTEREST
11.1 Absence of quotations
Subject to Clause 11.2 (Market disruption), if LIBOR or, if applicable
EURIBOR, is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable LIBOR or EURIBOR shall be determined on
the basis of the quotations of the remaining Reference Banks.
11.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for
any Interest Period, then the rate of interest on each
Lender's share of that Loan for the Interest Period shall be
the rate per annum which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon
as practicable and in any event before interest is
due to be paid in respect of that Interest Period, to
be that which expresses as a percentage rate per
annum the cost to that Lender of funding its
participation in that Loan from whatever source it
may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that
Lender's participation in 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 New York 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.
11.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the
Borrower so requires, the Agent and the Borrower shall enter
into negotiations (for a period of not more than thirty days)
with a view to agreeing a substitute basis for determining the
rate of interest in respect of the relevant Loan.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders participating
in the relevant Loan and the Borrower, be binding on all
Parties.
11.4 Break Costs
(a) The Borrower shall, within three Business Days of demand by a
Lender, pay to that Lender its Break Costs attributable to all
or any part of a Loan or Unpaid Sum being paid by the Borrower
on a day other than the last day of an Interest Period for
that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming in
reasonable detail the amount of its Break Costs for any
Interest Period in which they accrue.
12. FEES
12.1 Arrangement fee
The Borrower shall pay to the Arranger an arrangement fee in the amount
and at the times agreed in the Syndication and Fees Letter.
12.2 Agency fee
The Borrower shall pay to (or procure payment to) the Agent (for its
own account) an agency fee in the amount and at the times agreed in the
Syndication and Fees Letter.
12.3 Commitment fee
(a) The Borrower shall pay to the Agent (for the account of each
Lender under Facility B) a commitment fee computed at the rate
of 30 per cent. of the applicable Margin from time to time in
relation to Facility B on that Lender's Average Available
Commitment (as defined below) for each successive period of
three Months during the Availability Period and for any
shorter period of availability ending by the cancellation or
termination of Facility B.
(b) The accrued commitment fees are payable on the last day of
each successive period of three Months which ends during the
Availability Period, on the last day of the Availability
Period and, if cancelled in full, on the cancelled amount of
the relevant Lender's Commitment at the time the cancellation
is effective.
(c) In this Clause 12.3:
"Average Available Commitment" means, in respect of each
Lender during the relevant period, the Aggregate Available
Commitment divided by the number of actual days elapsed during
that Availability Period; and
"Aggregate Available Commitment" means, in respect of each
Lender during any Availability Period, the sum of such
Lender's Available Commitment in relation to Facility B at the
start of each day during that period.
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13. TAX GROSS UP AND INDEMNITIES
13.1 Definitions
(a) In this Clause 13:
"Protected Party" means a Finance Party which is or will be
subject to any liability or required to make any payment, for
or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be
received or receivable) under a Finance Document.
"Tax Deduction" means a deduction or withholding for or on
account of Tax from a payment made under a Finance Document.
"Tax Payment" means either the increase in a payment made by
an Obligor to a Finance Party under Clause 13.2 (Tax gross-up)
or a payment under Clause 13.3 (Tax indemnity).
(b) Unless a contrary indication appears, in this Clause 13 a
reference to "determines" or "determined" means a
determination made in the absolute good faith discretion of
the person making the determination.
13.2 Tax gross-up
(a) Each Obligor shall make all payments to be made by it without
any Tax Deduction, unless a Tax Deduction is required by law
or regulation.
(b) The Borrower or a Lender shall promptly upon becoming aware
that an Obligor must make a Tax Deduction (or that there is
any change in the rate or the basis of a Tax Deduction) notify
the Agent accordingly. If the Agent receives such notification
from a Lender it shall notify the Borrower and that Obligor.
(c) If a Tax Deduction is required by law or regulation to be made
by an Obligor, the amount of the payment due from that Obligor
shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would
have been due 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.
13.3 Tax indemnity
(a) The Borrower shall (within five Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the amount
of any Tax assessed on that Protected Party (together with any
interest, costs or expenses payable, directly or indirectly,
or incurred in connection therewith) in relation to a sum
received or receivable (or any sum deemed for the purposes of
Tax to be received or receivable) under a Finance Document.
(b) Paragraph (a) of this Clause 13.3 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 13.2 (Tax gross-up)) of that Finance
Party.
(c) A Protected Party making, or intending to make a claim
pursuant to paragraph (a) of this Clause 13.3 shall promptly
notify the Agent of the event which will give, or has given,
rise to the claim, following which the Agent shall notify the
Borrower.
(d) A Protected Party shall, on receiving a payment from an
Obligor under this Clause 13.3, notify the Agent.
13.4 Tax Exemptions
A Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower
is located, or under any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Agent), upon the Borrower's reasonable
request, such properly completed and executed documentation as will
permit such payments to be made without withholding or at a reduced
withholding tax rate; provided that such Lender is legally entitled to
complete, execute and deliver such documentation and in such Lender's
reasonable judgment such completion, execution or submission would not
cause such Lender or its lending office(s) to suffer any economic,
legal or regulatory disadvantage.
13.5 Stamp taxes
The Borrower shall pay and, within five Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document except
for any such tax payable in connection with the entry into of a
Transfer Certificate.
13.6 Value added tax
(a) All consideration expressed to be payable under a Finance
Document by any Party to a Finance Party shall be deemed to be
exclusive of any VAT. If VAT is chargeable on any supply made
by any Finance Party to any Party in connection with a Finance
Document, that Party shall pay to the Finance Party (in
addition to and at the same time as paying the consideration)
an amount equal to the amount of the VAT 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.
14. INCREASED COSTS
14.1 Increased costs
(a) Subject to Clause 14.2 (Increased Cost Claims) and Clause 14.3
(Exceptions) the Borrower shall, within three Business Days of
a demand by the Agent, pay for the account of a Finance Party
the amount of any Increased Costs incurred by that Finance
Party or any of its Affiliates as a result of:
(i) the introduction of or any change in (or in the
interpretation, administration or application of) any
law or regulation; 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.
14.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause
14.1 (Increased costs) shall notify the Agent of the event
giving rise to the claim and a calculation evidencing in
reasonable detail the amount of such Increased Costs to be
claimed by such Finance Party, following which the Agent shall
promptly notify the Borrower and provide the Borrower with
such calculations.
(b) Each Finance Party shall, as soon as practicable after a
demand by the Agent, provide a certificate confirming the
amount of its Increased Costs.
14.3 Exceptions
(a) Clause 14.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law or
regulation to be made by an Obligor;
(ii) compensated for by Clause 13.3 (Tax indemnity) (or
would have been compensated for under Clause 13.3
(Tax indemnity) but was not so compensated solely
because any of the exclusions in paragraph (b) of
Clause 13.3 (Tax indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost;
or
(iv) attributable to the breach by the relevant Finance
Party or its Affiliates of any law or regulation.
(b) In this Clause 14.3, a reference to a "Tax Deduction" has the
same meaning given to the term in Clause 13.1 (Definitions).
15. OTHER INDEMNITIES
15.1 Currency indemnity
(a) If any sum due from an Obligor under the Finance Documents (a
"Sum"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the
"First Currency") in which that Sum is payable into another
currency (the "Second Currency") for the purpose of:
(i) making or filing a claim or proof against that
Obligor; 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.
15.2 Other indemnities
Each Obligor shall, within five Business Days of demand, indemnify each
Finance Party against any cost, loss or liability not otherwise
compensated under the provisions of this Agreement and excluding any
lost profits, consequential or indirect damages (other than interest or
default interest) incurred by that Finance Party as a result of its
Commitment or the making of any Loan under the Finance Documents as a
result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any
cost, loss or liability arising as a result of Clause 27
(Sharing among the Finance Parties);
(c) funding, or making arrangements to fund, its participation in
a Loan requested by the Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default
or negligence by that Finance Party alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment given by the Borrower.
15.3 Indemnity to the Agent
The Borrower shall (or shall procure that another Obligor will)
promptly indemnify the Agent against any cost, loss or liability
directly related to this Agreement incurred by the Agent (acting
reasonably and otherwise than by reason of the Agent's gross negligence
or wilful misconduct) as a result of:
(a) investigating any event which it reasonably believes (acting
prudently and, if possible, following consultation with the
Borrower) is a Default; or
(b) acting or relying on any notice, request or instruction which
it reasonably believes to be genuine, correct and
appropriately authorised.
16. MITIGATION BY THE LENDERS
16.1 Mitigation
(a) Each Finance Party shall, in consultation with the Borrower,
take all reasonable steps to mitigate any circumstances which
arise after the date of this Agreement and which would result
in any amount becoming payable under or pursuant to, or
cancelled pursuant to, any of Clause 8.1 (Illegality of a
Lender), Clause 13 (Tax gross-up and indemnities), Clause 14
(Increased costs) or paragraph 3 of Schedule 4 (Mandatory Cost
Formulae) including (but not limited to) transferring its
rights and obligations under the Finance Documents to another
Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations
of any Obligor under the Finance Documents.
16.2 Limitation of liability
(a) The Borrower shall (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 16.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause
16.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
17. COSTS AND EXPENSES
17.1 Transaction expenses
The Borrower shall promptly on demand pay the Agent and the Arrangers
the amount of all documented costs and expenses (including legal fees)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
17.2 Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 28.9 (Change of currency), the
Borrower shall, within three Business Days of demand, reimburse the
Agent, the Arranger and each Lender for the amount of all costs and
expenses (including legal fees, but in this case, only the legal fees
of one law firm in each relevant jurisdiction acting on behalf of all
the Lenders) reasonably incurred by such parties in responding to,
evaluating, negotiating or complying with that request or requirement.
17.3 Enforcement costs
The Borrower shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the enforcement
of, or the preservation of any rights under, any Finance Document.
SECTION 7
GUARANTEE
18. GUARANTEE AND INDEMNITY
18.1 Guarantee and indemnity
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by the
Borrower of all the Borrower's obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever the Borrower
does not pay any amount when due under or in connection with
any Finance Document, it shall immediately on demand pay that
amount as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against
any cost, loss or liability suffered by that Finance Party if
any obligation guaranteed by it is or becomes unenforceable,
invalid or illegal. The amount of the cost, loss or liability
shall be equal to the amount which that Finance Party would
otherwise have been entitled to recover.
18.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the
ultimate balance of sums payable by the Borrower under the Finance
Documents, regardless of any intermediate payment or discharge in whole
or in part.
18.3 Reinstatement
If any payment by the Borrower or any discharge given by a Finance
Party (whether in respect of the obligations of the Borrower or any
security for those obligations or otherwise) is avoided or reduced as a
result of insolvency or any similar event:
(a) the liability of the Borrower shall continue as if the
payment, discharge, avoidance or reduction had not occurred;
and
(b) each Finance Party shall be entitled to recover the value or
amount of that security or payment from the Borrower, as if
the payment, discharge, avoidance or reduction had not
occurred.
18.4 Waiver of defences
The obligations of each Guarantor under this Clause 18 will not be
affected by an act, omission, matter or thing which, but for this
Clause 18, would reduce, release or prejudice any of its obligations
under this Clause 18 (without limitation and whether or not known to it
or any Finance Party) including:
(a) any time, waiver or consent granted to, or composition with,
the Borrower or other person;
(b) the release of the Borrower or any other person under the
terms of any composition or arrangement with any creditor of
any member of the Group;
(c) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, the
Borrower or other person or any non-presentation or
non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full
value of any security;
(d) any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of the Borrower or any other person;
(e) any amendment (however fundamental) or replacement of a
Finance Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security; or
(g) any insolvency or similar proceedings.
18.5 Immediate recourse
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from
any person before claiming from a Guarantor under this Clause 18 and
waives any similar or additional rights that may be granted by
applicable law. 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.
18.6 Appropriations
Until all amounts which may be or become payable by the Borrower under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf)
may:
(a) refrain from applying or enforcing any other 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 18,
provided that the operation of this Clause 18.6 shall not be deemed to
create any Liens.
18.7 Deferral of Guarantors' rights
Until all amounts which may be or become payable by the Borrower under
or in connection with the Finance Documents have been irrevocably paid
in full and unless the Agent (acting on the instructions of the
Majority Lenders) otherwise directs, no Guarantor will exercise any
rights which it may have by reason of performance by it of its
obligations under the Finance Documents:
(a) to be indemnified by the Borrower;
(b) to claim any contribution from any other guarantor of the
Borrower's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or
security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party.
18.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by
any other guarantee or security now or subsequently held by any Finance
Party.
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in Clause
19.1 (Corporate Existence and Power) to Clause 19.11 (No default)
(inclusive) to each Finance Party.
Each of the Borrower and Cemex Parent makes the representations and
warranties set out in Clauses 19.12 (No misleading information) to
Clause 19.16 (Intellectual property) (inclusive) to each Finance Party.
Cemex Parent makes the representations and warranties set out in
Clauses 19.17 (Financial information) to Clause 23.24 (Environmental
Matters) (inclusive) to each Finance Party.
Each Guarantor makes the representations and warranties set out in
Clause 19.26 (Mutual Benefits) to each Finance Party.
19.1 Corporate Existence and Power
(a) Each Obligor is a corporation duly incorporated, validly
existing under the laws of its jurisdiction of incorporation
and has all requisite corporate power and authority (including
all governmental licences, permits and other approvals except
for such licences, permits and approvals the absence of which
will not have a Material Adverse Effect) to own its assets and
carry on its business as now conducted and as proposed to be
conducted.
(b) All of the outstanding stock of such Obligor has been validly
issued and is fully paid and non-assessable.
(c) The Borrower is in full compliance with the applicable
provisions of the Dutch Banking Act and any implementing
regulations, including, but not limited to, the Dutch
Exemption Regulation and the Dutch Policy Guidelines. The
Borrower has verified the status of each Lender and each such
Lender is either (i) a Professional Market Party or (ii)
exempted from the requirement to be a Professional Market
Party because it forms a closed circle (besloten kring),
within the meaning of the Dutch Exemption Regulation, with the
Borrower.
19.2 Power and Authority; Enforceable Obligations
(a) The execution, delivery and performance by each Obligor of
each Finance Document to which it is or will be a party, and
the consummation of the transactions contemplated hereby and
thereby, are within such Obligor's corporate powers and have
been duly authorised by all necessary corporate action
pursuant to the statuten or, as the case may be, estatutos
sociales of such Obligor.
(b) This Agreement and the other Finance Documents to which each
Obligor is a party have been duly executed and delivered by
such Obligor and constitute legal, valid and binding
obligations of such Obligor enforceable in accordance with
their respective terms, except as enforceability may be
limited by applicable concurso mercantil, bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or general equity
principles.
19.3 Compliance with Law and Other Instruments
The execution, delivery and performance of this Agreement and any of
the other Finance Documents to which such Obligor is a party and the
consummation of the transactions herein or therein contemplated, and
compliance with the terms and provisions hereof and thereof, do not and
will not (a) conflict with, or result in a breach or violation of, or
constitute a default under, or result in the creation or imposition of
any Lien upon the assets of such Obligor pursuant to, any Contractual
Obligation of such Obligor or (b) result in any violation of the
statuten or, as the case may be, estatutos sociales of such Obligor or
any provision of any Requirement of Law applicable to such Obligor.
19.4 Consents/Approvals
No order, permission, consent, approval, licence, authorization,
registration or validation of, or notice to or filing with, or
exemption by, any Governmental Authority or third party is required to
authorise, or is required in connection with, the execution, delivery
and performance by such Obligor of this Agreement and the other Finance
Documents to which such Obligor is a party or the taking of any action
contemplated hereby or by any other Finance Document.
19.5 Litigation; Material Adverse Effect
Except as set forth in Schedule 11 (Litigation), there is no pending or
threatened action, suit, investigation, litigation or proceeding,
including any Environmental Action, affecting Cemex Parent or any of
its Subsidiaries before any court, Governmental Authority or arbitrator
that (i) would be reasonably likely to have a Material Adverse Effect
or (ii) purports to affect the legality, validity or enforceability of
any Finance Document or the consummation of the transactions
contemplated thereby, and there has been no adverse change in the
status, or financial effect on Cemex Parent or any of its Subsidiaries,
of the litigation described in Schedule 11 (Litigation).
19.6 No Immunity
Each Obligor is subject to civil and commercial law with respect to its
obligations under this Agreement and each other Finance Document to
which it is a party and the execution, delivery and performance of this
Agreement or any such other Finance Document by such Obligor constitute
private and commercial acts rather than public or governmental acts.
Under the laws of Mexico or The Netherlands (as applicable) neither
such Obligor nor any of its property has any immunity from jurisdiction
of any court or any legal process (whether through service or notice,
attachment prior to judgment or attachment in aid of execution).
19.7 Governmental Regulations
Each Obligor is not, and is not controlled by, (a) an "investment
company" within the meaning of the United States Investment Company Act
of 1940, as amended or (b) a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
19.8 Direct Obligations: Pari Passu
(a) This Agreement constitutes a direct, unconditional,
unsubordinated and unsecured obligation of such Obligor.
(b) The obligations of such Obligor under this Agreement rank and
will rank in priority of payment at least pari passu with all
other senior unsecured Debt of such Obligor.
19.9 No Recordation Necessary
This Agreement is in proper legal form under the laws of Mexico and of
The Netherlands for the enforcement thereof against such Obligor under
the law of Mexico or, as the case may be, The Netherlands. To ensure
the legality, validity, enforceability or admissibility in evidence of
this Agreement and each other Finance Document in Mexico and in The
Netherlands, it is not necessary that this Agreement or any other
Finance Document be filed or recorded with any Governmental Authority
in Mexico or any Governmental Authority in The Netherlands or that any
stamp or similar tax be paid on or in respect of this Agreement or any
other document to be furnished under this Agreement unless such stamp
or similar taxes have been paid by the Borrower or the Guarantors;
provided, however, that in the event any legal proceedings are brought
in the courts of Mexico, an official Spanish translation of the
documents required in such proceedings, including this Agreement, would
have to be approved by the court after the defendant is given an
opportunity to be heard with respect to the accuracy of the
translation, and proceedings would thereafter be based upon the
translated documents.
19.10 Governing law
In any action or proceeding involving any Finance Party arising out of
or relating to any Finance Document in any Mexican or Dutch court or
tribunal, the Lenders and the Agent would be entitled to the
recognition and effectiveness of the choice of law, submission to
jurisdiction and waiver of sovereign immunity provisions of Clause 36
(Governing Law), Clause 37.1 (Jurisdiction of English Courts) and
Clause 38 (Waiver of Sovereign Immunity).
19.11 No default
No Default or Event of Default has occurred and is continuing.
19.12 No misleading information
All material written information 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.
19.13 Financial statements/condition
(a) The financial statements delivered pursuant to Clause 20.1
(Financial statements) are complete and correct in all
material respects and present fairly (i) the consolidated
financial condition of each of Cemex Parent and its
Subsidiaries and Cemex Spain and its Subsidiaries as at the
dates thereof, and the consolidated results of its operations
and its consolidated cash flows for the periods then ended
(subject, in the case of quarterly financial statements, to
normal year end audit adjustments) and (ii) the financial
condition of the Borrower and each of the Guarantors other
than Cemex Parent as at the dates thereof, and the results of
each of their operations and cash flows for the periods then
ended, subject, in the case of quarterly financial statements,
to normal year end audit adjustments. All such financial
statements, including the related schedules and notes thereto,
have been prepared in accordance with Applicable GAAP applied
consistently throughout the periods involved.
(b) No member of the Group has any guarantee obligations,
contingent liabilities, liabilities for taxes, or any long
term leases or unusual forward or long term commitments,
including without limitation any interest rate or foreign
currency swap or exchange transaction or other obligation in
respect of Derivatives Obligations, which is material and is
not reflected in the most recent financial statements referred
to in paragraph (a) above.
(c) Since 31 December 2004, (i) there has been no development or
event that has had or would reasonably be expected to have a
Material Adverse Effect and (ii) there has been no Disposition
by any member of the Group which has had or would reasonably
be expected to have a Material Adverse Effect.
19.14 Full Disclosure
All information heretofore furnished by the Borrower to the Agent, the
Arrangers or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby (other than
projections and other "forward-looking" information that have been
prepared on a reasonable basis and in good faith by the Borrower) is,
and all such information hereafter furnished by the Borrower to the
Agent, the Arrangers or any Lender will be, true and accurate in all
material respects on the date as of which such information is stated or
certified and does not omit to state any material fact necessary in
order to make the statements contained herein or therein, taken as a
whole, not misleading. The Borrower has disclosed to the Lenders in
writing any and all facts which may have a Material Adverse Effect.
19.15 Margin Regulations
No part of the proceeds of the Loans hereunder will be used, directly
or indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested by
any Lender or the Agent, the Borrower will furnish to the Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U. No
indebtedness being reduced or retired out of the proceeds of the Loans
hereunder was or will be incurred for the purpose of purchasing or
carrying any margin stock within the meaning of Regulation U or any
"margin security" within the meaning of Regulation T. Margin stock
within the meaning of Regulation U does not constitute more than 25% of
the value of the consolidated assets of Cemex Parent and its
Subsidiaries. Neither the execution and delivery hereof by the
Borrower, nor the performance by it of any of the transactions
contemplated by this Agreement (including the direct or indirect use of
the proceeds of the Loans) will violate or result in a violation of the
Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended, or regulations issued pursuant thereto, or Regulation
T, U, or X.
19.16 Intellectual Property
Each member of the Group owns, or is licensed to use, all Intellectual
Property necessary for the conduct of its business as currently
conducted free and clear of Liens, conditions, adverse claims or other
restrictions. No material claim has been asserted and is pending by any
Person challenging or questioning the use of any Intellectual Property
or the validity, enforceability or effectiveness of any Intellectual
Property owned by any member of the Group, nor does any Obligor know of
any valid basis for any such claim. The use of Intellectual Property by
each member of the Group does not infringe on the rights of any Person
in any material respect.
19.17 Financial Information.
The consolidated balance sheet of Cemex Parent and its Subsidiaries as
at December 31, 2004, and the related consolidated statements of income
and cash flows of Cemex Parent and its Subsidiaries for the fiscal year
then ended, accompanied by an opinion of KPMG Cardenas Dosal, S.C.,
independent public accountants, and the consolidated balance sheet of
Cemex Parent and its Subsidiaries as at March 31, 2005, and the related
consolidated statements of income and cash flows of Cemex Parent and
its Subsidiaries for the three months then ended, duly certified by the
chief financial officer of Cemex Parent, copies of which have been
furnished to the Agent, fairly present, subject, in the case of said
balance sheet as at March 31, 2005, and said statements of income and
cash flows for the three months then ended, to year-end audit
adjustments, the consolidated financial condition of Cemex Parent and
its Subsidiaries as at such dates and the consolidated results of the
operations of Cemex Parent and its Subsidiaries for the periods ended
on such dates, all in accordance with Mexican GAAP, consistently
applied.
19.18 Liens
There are no Liens on the property of Cemex Parent or any of its
Subsidiaries other than Permitted Liens.
19.19 Subsidiaries
As of 31 March 2005, all Material Subsidiaries of the Borrower are
listed in Schedule 12 (Material Subsidiaries), without giving effect to
the acquisition of RMC Group p.l.c.
19.20 Ownership of Property and insurance
(a) Except as, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect, each of Cemex Parent and
its Subsidiaries has title in fee simple to, or a valid
leasehold interest in, all its real property, and good title
to, or a valid leasehold interest in, all its other property,
and none of such property is subject to any Lien except
Permitted Liens.
(b) Each Obligor maintains insurance as required by Clause 21.3
(Maintenance of insurance).
19.21 Enforcement
It is not necessary (a) in order for the Agent, any Lender or any other
Finance Party to enforce any rights or remedies under the Finance
Documents or (b) solely by reason of the execution, delivery and
performance of this Agreement by the Agent, any Lender or any other
Finance Party, that the Agent, such Lender or such other Finance Party
be licensed or qualified with any Mexican Governmental Authority or any
Dutch Governmental Authority or be entitled to carry on business in
Mexico or, as the case may be, The Netherlands.
19.22 Taxes
(a) Each Obligor has filed all material tax returns which are
required to be filed by it and has paid all taxes due pursuant
to such returns or pursuant to any material assessment
received by Cemex Parent, except where the same may be
contested in good faith by appropriate proceedings and as to
which such Obligor maintains reserves to the extent it is
required to do so by law or pursuant to Mexican GAAP. The
charges, accruals and reserves on the books of each Obligor in
respect of taxes or other governmental charges are, in the
opinion of Cemex Parent, adequate.
(b) Except for tax imposed by way of withholding on interest, fees
and commissions remitted from Mexico, there is no tax (other
than taxes on, or measured by, income or profits), levy,
impost, deduction, charge or withholding imposed, levied,
charged, assessed or made by or in Mexico or any political
subdivision or taxing authority thereof or therein either (i)
on or by virtue of the execution or delivery of this Agreement
or any of the other Finance Documents or (ii) on any payment
to be made by the Borrower pursuant to this Agreement or any
of the other Finance Documents. The Borrower and each
Guarantor is permitted to pay any additional amounts payable
pursuant to Clause 13 (Tax Gross Up and Indemnities).
19.23 Compliance with Laws
Cemex Parent and its Subsidiaries are in compliance in all material
respects with all applicable Requirements of Law (including with
respect to the licences, certificates, permits, franchises, and other
governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses,
antitrust laws or Environmental Laws and the rules and regulations and
laws with respect to social security, workers' housing funds, and
pension funds obligations), except where the failure to so comply would
not have a Material Adverse Effect.
19.24 Pension and Welfare Plans
During the consecutive twelve-month period prior to the date of the
execution and delivery of this Agreement and prior to the date of any
Utilisation hereunder, no steps have been taken to terminate any
Pension Plan, and no contribution failure has occurred with respect to
any Pension Plan sufficient to give rise to a Lien under Section 302(f)
of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which would reasonably be expected to
result in the incurrence by any Obligor, any of its Subsidiaries, or
any its ERISA Affiliates of any material liability (other than
liabilities incurred in the ordinary course of maintaining the Pension
Plan), fine or penalty. No Obligor, nor any of its Subsidiaries, has
any contingent liability with respect to any post-retirement benefit
under a Welfare Plan which would reasonably be expected to have a
Material Adverse Effect, other than liability for continuation coverage
described in Part 6 of Title I of ERISA.
19.25 Environmental Matters
Except as would not have or be reasonably expected to have a Material
Adverse Effect:
(a) each of the properties owned or leased by an Obligor or any of
its Subsidiaries (the "Real Properties") and all operations at
the Real Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any
Environmental Law with respect to the Real Properties or the
businesses operated by the Obligors or any of their respective
Subsidiaries (the "Businesses"), and there are no conditions
relating to the Businesses or Real Properties that would
reasonably be expected to give rise to liability under any
applicable Environmental Laws.
(b) No Obligor has received any written notice of, or inquiry from
any Governmental Authority regarding, any violation, alleged
violation, non-compliance or liability regarding Hazardous
Materials or compliance with Environmental Laws with regard to
any of the Real Properties or the Businesses, nor, to the
knowledge of an Obligor or any of its Subsidiaries, is any
such notice being threatened.
(c) Hazardous Materials have not been transported or disposed of
from the Real Properties, or generated, treated, stored or
disposed of at, on or under any of the Real Properties or any
other location, in each case by, or on behalf or with the
permission of, an Obligor or any of its Subsidiaries in a
manner that would give rise to liability under any applicable
Environmental Laws.
(d) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of an Obligor or any of
its Subsidiaries, threatened, under any Environmental Law to
which an Obligor or any of its Subsidiaries is or will be
named as a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to an
Obligor or any of its Subsidiaries, the Real Properties or the
Businesses.
(e) There has been no release (including disposal) or to Cemex
Parent's knowledge, threat of release of Hazardous Materials
at or from the Real Properties, or arising from or related to
the operations of an Obligor or any of its Subsidiaries in
connection with the Real Properties or otherwise in connection
with the Businesses where such release constituted a violation
of, or would give rise to liability under, any applicable
Environmental Laws.
(f) None of the Real Properties contains any Hazardous Materials
at, on or under the Real Properties in amounts or
concentrations that, if released, constitute a violation of,
or could give rise to liability under, Environmental Laws.
(g) No Obligor, nor any of their respective Subsidiaries, has
assumed any liability of any Person (other than another
Obligor or one of its Subsidiaries) under any Environmental
Law. This Clause 19.23 constitutes the only representations
and warranties of the Obligors with respect to any
Environmental Law or Hazardous Substance.
19.26 Mutual Benefits
Each Guarantor represents and warrants to each Finance Party as
follows: having taken into account the financial interdependence and
mutual reliance between each Guarantor, its subsidiaries, and the
Borrower, the continuing financial and other assistance from time to
time given by each Guarantor to the Borrower and the other Obligors and
vice versa, each Guarantor expects to derive material benefits,
directly or indirectly (through the financing provided to its
subsidiaries), from the financing obtained under this Facility, both in
its separate capacity, as shareholder in various subsidiaries and as
member of the Group, since the successful operation and condition of
each Guarantor is dependent on the continued successful performance of
the functions of the Group as a whole.
19.27 Repetition
The Repeating Representations are deemed to be made by each Obligor by
reference to the facts and circumstances then existing on:
(a) the date of each Utilisation Request and the first day of each
Interest Period; and
(b) in the case of an Additional Guarantor, the day on which the
company becomes (or it is proposed that the company becomes)
an Additional Guarantor.
20. INFORMATION UNDERTAKINGS
The undertakings in this Clause 20 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
20.1 Financial statements
The Borrower shall supply to the Agent:
(a) as soon as the same become available, but in any event within:
(i) 120 days after the end of each of the financial years
of Cemex Parent:
(A) a copy of the annual audit report for such
year for Cemex Parent and its Subsidiaries
containing consolidated and consolidating
balance sheets of Cemex Parent and its
Subsidiaries, as of the end of such
financial year and consolidated statements
of income and cash flows of Cemex Parent and
its Subsidiaries, for such financial year,
in each case accompanied by an opinion
acceptable to the Majority Lenders (acting
reasonably) by KPMG Cardenas Dosal, S.C. or
other independent public accountants of
recognised standing acceptable to the
Majority Lenders, together with a
certificate of such accounting firm to the
Lenders stating that in the course of the
regular audit of the business of Cemex
Parent and its Subsidiaries, which audit was
conducted by such accounting firm in
accordance with Mexican GAAP, such
accounting firm has obtained no knowledge
that a Default or Event of Default has
occurred and is continuing, or if, in the
opinion of such accounting firm a Default or
Event of Default has occurred and is
continuing, a statement as to the nature
thereof; and
(B) the audited unconsolidated financial
statements of each Guarantor (other than
Cemex Parent) for that financial year (if
available and upon request by the Agent);
and
(ii) 183 days after the end of the financial year of the
Borrower, its audited unconsolidated financial
statements for that financial year; and
(iii) 183 days after the end of the financial year of Cemex
Spain, its audited consolidated financial statements
for that financial year (if available); and
(b) as soon as the same become available, but in any event within:
(i) 60 days after the end of each of the first three
quarterly periods of each of the financial years of
Cemex Parent:
(A) consolidated balance sheets of Cemex Parent
and its Subsidiaries, as of the end of such
quarter and consolidated statements of
income and cash flows of Cemex Parent and
its Subsidiaries for the period commencing
at the end of the previous financial year
and ending with the end of such quarter,
duly certified (subject to year-end audit
adjustments) by an Authorised Signatory of
Cemex Parent as having been prepared in
accordance with Mexican GAAP and together
with a certificate of an Authorised
Signatory of Cemex Parent, as to compliance
with the terms of this Agreement; and
(B) together with the financial statements
delivered with respect to the fiscal quarter
ended 30 June 2005, a schedule of all
Material Subsidiaries of the Borrower, after
giving effect to the acquisition of RMC
Group PLC.
(ii) 90 days after the end of each of the first three
quarterly periods of each of the financial years of
the Borrower, its unconsolidated financial statements
for that period; and
(iii) 90 days after the end of each of the first half of
each of the financial years of Cemex Spain, its
consolidated financial statements for that period (if
available).
20.2 Compliance Certificate
(a) The Borrower shall supply to the Agent, with each set of
financial statements delivered pursuant to paragraph
(a)(i)(A), (a)(ii), (b)(i)(A) or (b)(ii) of Clause 20.1
(Financial statements), a Compliance Certificate setting out
(in reasonable detail) computations as to compliance with
Clause 21.13 (Financial condition covenants) as at the date as
at which those financial statements were drawn up.
(b) Each Compliance Certificate shall be signed by an Authorised
Signatory of Cemex Parent or the Borrower, as the case may be.
20.3 Requirements as to financial statements
(a) Each set of financial statements delivered by the Borrower
pursuant to Clause 20.1 (Financial statements) shall be
certified by an Authorised Signatory of the relevant company
as fairly representing its financial condition as at the date
as at which those financial statements were drawn up.
(b) The Borrower shall procure that each set of financial
statements of an Obligor delivered pursuant to Clause 20.1
(Financial statements) is prepared using Applicable GAAP and
accounting practices and financial reference periods
consistent with those applied in the preparation of the
Original Financial Statements for that Obligor unless, in
relation to any set of financial statements, it notifies the
Agent that there has been a change in Applicable GAAP or the
accounting practices or reference periods and, unless
amendments are agreed in accordance with paragraph (c) of this
Clause 20.3 its auditors (or, if appropriate, the auditors of
the Obligor) deliver to the Agent:
(i) a description of any change necessary for those
financial statements to reflect the Applicable GAAP,
accounting practices and reference periods upon which
that Obligor's Original Financial Statements were
prepared; and
(ii) sufficient information, in form and substance as may
be reasonably required by the Agent, to enable the
Lenders to determine whether Clause 21.13 (Financial
condition covenants) has been complied with and make
an accurate comparison between the financial position
indicated in those financial statements and that
Obligor's Original Financial Statements.
Any reference in this Agreement to those financial statements
shall be construed as a reference to those financial
statements as adjusted to reflect the basis upon which the
Original Financial Statements were prepared.
(c) If the Borrower adopts International Accounting Standards or,
subject to paragraph (b) above, there are changes to the
Applicable GAAP, or the accounting practices or reference
periods the Borrower and the Agent shall, at the Borrower's
request, negotiate in good faith with a view to agreeing such
amendments to the financial covenants in Clause 21.13
(Financial condition covenants) and the ratios used to
calculate the Margin and, in each case, the definitions used
therein as may be necessary to ensure that the criteria for
evaluating the Group's financial condition grant to the
Lenders protection equivalent to that which would have been
enjoyed by them had the Borrower not adopted International
Accounting Standards or there had not been a change in the
Applicable GAAP, or the accounting practices or reference
periods (subject to compliance with paragraph (b) above). Any
amendments agreed will take effect on the date agreed between
the Agent and the Borrower subject to the consent of the
Majority Lenders. If no such agreement is reached within 90
days of the Borrower's request, the Borrower will remain
subject to the obligation to deliver the information specified
in paragraph (b) of this Clause 20.3.
20.4 Information: miscellaneous
The Borrower shall supply to the Agent:
(a) within five days after the same are sent, copies of all
financial statements and reports that Cemex Parent sends to
the holders of any class of its debt securities; and
(b) promptly, such further information regarding the financial
condition, business and operations of any member of the Group
as any Finance Party (through the Agent) may reasonably
request.
20.5 Notification of default
(a) Each Obligor shall notify the Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon
becoming aware of its occurrence and in any event within five
days after becoming aware of the occurrence of such Default
(unless that Obligor is aware that a notification has already
been provided by another Obligor).
(b) Promptly upon a request by the Agent, the Borrower shall
supply to the Agent a certificate signed by an Authorised
Signatory on its behalf certifying that no Default is
continuing (or if a Default is continuing, specifying the
Default and the steps, if any, being taken to remedy it).
20.6 "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, such as the checks
required by the US Patriot Act (Title III of Pub. L. 107-56
(signed into law 26 October 2001) 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. For the avoidance of doubt, a Lender will have no
obligation towards the Agent to evidence that it has complied
with any "know your client" or similar checks in relation to
the Obligors.
(b) The Borrower shall, by not less than 5 Business Days' written
notice to the Agent, notify the Agent (which shall promptly
notify the Lenders) of its intention to request that one of
its Subsidiaries becomes an Additional Obligor pursuant to
Clause 24 (Changes to the Obligors).
(c) Following the giving of any notice pursuant to paragraph (b)
above, the Borrower shall promptly upon the request of the
Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by
the Agent (for itself or on behalf of any Lender) or any
Lender (for itself or on behalf of any prospective New Lender)
in order for the Agent, such Lender or any prospective New
Lender to carry out and be satisfied with the results of all
necessary "know your client" or other checks in relation to
the identity of any person that it is required by law to carry
out in relation to the accession of such Additional Obligor to
this Agreement.
20.7 Notices
Give notice to the Agent and each Lender as soon as practicable after
the occurrence of:
(a) promptly after the commencement thereof, notice of all
litigation, actions, investigations and proceedings before any
court, Governmental Authority or arbitrator affecting the
Borrower or any of its Subsidiaries of the type described in
Clause 19.5 (Litigation; Material Adverse Effect) or the
receipt of written notice by the Borrower or any of its
subsidiaries of potential liability or responsibility for
violation, or alleged violation of any federal, state or local
law, rule or regulation (including Environmental Laws) the
violation of which could reasonably be expected to have a
Material Adverse Effect;
(b) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect; and
(c) any increase of the ratio of Total Borrowings of the Borrower
to Total Net Worth of Cemex Spain above 0.35 to 1.00.
Each notice pursuant to this Clause 20.7 shall be accompanied by a
certificate signed by an Authorised Signatory setting forth details of
the occurrence referred to therein and stating what action the relevant
member of the Group proposes to take with respect thereto.
21. GENERAL UNDERTAKINGS
The Borrower and the Guarantors hereby jointly and severally agree
that, so long as the Commitments remain in effect or any Loan or other
amount is owing to any Lender or Agent hereunder, the Borrower and the
Guarantors shall and, in the case of Cemex Parent only, shall cause
each of its Subsidiaries to:
21.1 Compliance with laws and Contractual Obligations, etc.
(a) Comply, in all material respects, with all applicable
Requirements of Law (including with respect to the licences,
approvals, certificates, permits, franchises, notices,
registrations and other governmental authorisations necessary
to the ownership of its respective properties or to the
conduct of its respective business, antitrust laws or
Environmental Laws and laws with respect to social security
and pension funds obligations) and all material Contractual
Obligations, except where the failure to so comply could not
reasonably be expected to result in a Material Adverse Effect.
(b) In the case of the Borrower, comply with any applicable
provisions of the Dutch Banking Act and any implementing
regulations including, without limitation, the Dutch Exemption
Regulation and the Dutch Policy Guidelines.
(c) In the case of the Borrower, for so long as it is a
requirement of Dutch law that each Lender hereunder be a
Professional Market Party at the time such Lender enters into
this Agreement, the Borrower shall represent and warrant to
each Lender, as of each date that any New Lender becomes a
Lender hereunder, that the Borrower has verified that on such
date such New Lender is either (i) a Professional Market Party
or (ii) exempted from the requirement to be a Professional
Market Party because it forms a closed circle (besloten
kring), within the meaning of the Dutch Exemption Regulation,
with the Borrower.
21.2 Payment of obligations
Pay and discharge, before the same shall become delinquent, (a) all
taxes, assessments and governmental charges or levies assessed, charged
or imposed upon it or upon its property and (b) all lawful claims that,
if unpaid, might by law become a Lien upon its property, except where
the failure to make such payments or effect such discharges could not
reasonably be expected to have a Material Adverse Effect; provided that
no member of the Group shall be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim that
is being contested in good faith and by proper proceedings and as to
which appropriate reserves are being maintained, unless and until any
Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
21.3 Maintenance of insurance
Maintain insurance with reputable insurance companies or associations
in such amounts and covering such risks as is usually carried by
companies of established reputation engaged in similar businesses and
owning similar properties in the same general areas in which Cemex
Parent or such Subsidiary of Cemex Parent operates.
21.4 Conduct of business and preservation of corporate existence
Continue to engage in business of the same general type as now
conducted by members of the Group and preserve and maintain its
corporate existence, rights (charter and statutory), licences,
consents, permits, notices or approvals and franchises deemed material
to its business; provided that no member of the Group shall be required
to maintain its corporate existence in connection with a merger or
consolidation permitted by Clause 21.15 (Consolidations and Mergers),
and provided further that no member of the Group shall be required to
preserve any right or franchise if that member of the Group shall in
its good faith judgment determine that the preservation thereof is no
longer in the best interests of Cemex Parent or that member of the
Group and the loss thereof could not reasonably be expected to have a
Material Adverse Effect.
21.5 Inspection of property
At any reasonable time during normal business hours and from time to
time with at least ten Business Days' prior notice, or at any time if a
Default or Event of Default shall have occurred and be continuing,
permit the Agent or any of the Lenders or any agents or representatives
thereof to examine and make abstracts from the records and books of
account of, and visit the properties of, each of the Obligors, and to
discuss the affairs, finances and accounts of such Obligors with any of
its officers or directors and with its independent certified public
accountants. All expenses associated with such inspection shall be
borne by the inspecting Lenders; provided that if a Default or an Event
of Default shall have occurred and be continuing, any expenses
associated with such inspection shall be borne by the Obligors.
21.6 Books and records
Keep proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such member of the Group in accordance with Applicable
GAAP, consistently applied.
21.7 Maintenance of properties, etc.
Maintain and preserve all of its properties that are used or useful in
the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and maintain, preserve and protect all
intellectual property and all necessary governmental and third party
approvals, franchises, licences and permits material to the business of
Cemex Parent or any Subsidiary of Cemex Parent; provided that none of
the foregoing shall prevent any member of the Group from discontinuing
the operation and maintenance of any of its properties or allowing to
lapse certain approvals, licences or permits the discontinuance of
which is desirable in the conduct of its business and which
discontinuance could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
21.8 Maintenance of Government approvals
Maintain in full force and effect at all times all approvals of and
filings with any Governmental Authority or third party required under
applicable law for (a) the conduct of its business (including, without
limitation, antitrust laws or Environmental Laws); (b) the performance
of each Obligors' obligations hereunder and under the other Finance
Documents by such Obligors and (c) for the validity or enforceability
hereof and thereof,
except where in each case, failure to maintain any such approvals or
fillings could not reasonably be expected to have a Material Adverse
Effect.
21.9 Pari passu ranking
Ensure that at all times the obligations of each Obligor under the
Finance Documents constitute unconditional general obligations of such
Obligor ranking in priority of payment at least pari passu with all
other senior unsecured, unsubordinated Debt of such Obligor.
21.10 Transactions with Affiliates
Conduct each transaction otherwise permitted under this Agreement with
any of its Affiliates on terms that are commercially reasonable and no
less favourable to that member of the Group than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
21.11 Use of Proceeds
The Borrower will use the proceeds of all Loans made hereunder for
general corporate purposes (including the repayment of existing Debt of
Cemex Parent or any of its Subsidiaries).
21.12 Further assurances
From time to time, do and perform any and all acts and execute any and
all documents as may be necessary or as reasonably requested by any
Lender in order to effect the purposes of this Agreement or to protect
the rights or interests of the Lenders under any of the Finance
Documents.
Negative Covenants - all Obligors
The Borrower and the Guarantors hereby jointly and severally agree that, so long
as the Commitments remain in effect or any Loan or other amount is owing to any
Lender or the Agent hereunder, the Borrower and the Guarantors shall not, and
shall not permit any of their Subsidiaries to, directly or indirectly:
21.13 Financial condition covenants
(a) Permit the Consolidated Leverage Ratio of Cemex Parent at any
time to exceed 3.50 to 1.00.
(b) Permit the Consolidated Fixed Charge Coverage Ratio of Cemex
Parent for any period of four consecutive fiscal quarters of
Cemex Parent to be less than 2.50 to 1.00.
(c) At the time of any entry into or incurrence of any Debt or
other obligation constituting a portion of Total Borrowings of
the Borrower, and after giving effect thereto, permit the
ratio of Total Borrowings of the Borrower to Total Net Worth
of Cemex Spain, to exceed 0.35 to 1.0.
(d) Concurrently with the delivery by Cemex Parent of any
financial statements pursuant to Clause 20 (Information
Undertakings), Cemex Parent shall deliver to the Agent (with
sufficient copies for each Lender) a certificate from an
Authorised Signatory containing all information and
calculations necessary for determining compliance by the
Borrower with paragraphs (a), (b) and (c) of this Clause
21.13.
21.14 Liens
Create, incur, assume or permit to exist any Lien on or with respect to
any property or asset of any member of the Group, whether now owned or
held or hereafter acquired, other than the following ("Permitted
Liens"):
(a) Liens 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 adequate reserves or other appropriate
provision, if any, as shall be required by Applicable 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 Applicable 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 attachment or judgment Lien, unless the judgment it
secures shall not, within 60 days after the entry thereof,
have been discharged or execution thereof stayed pending
appeal, or shall not have been discharged within 60 days after
the expiration of any such stay;
(e) liens existing on the date of this Agreement (other than liens
with respect to the acquisition of RMC Group PLC) as described
in Part I of Schedule 10 and liens existing as of 31 March
2005 (including liens with respect to the acquisition of RMC
Group PLC) as described in Part II of Schedule 10 (Permitted
Liens);
(f) any Lien on property acquired by the Borrower or any Guarantor
or any of their Subsidiaries after the date hereof that was
existing on the date of acquisition of such property; provided
that such Lien was not incurred in anticipation of such
acquisition, and any Lien created to secure all or any part of
the purchase price, or to secure Debt incurred or assumed to
pay all or any part of the purchase price, of property
acquired by any member of the Group after the date hereof;
provided, further that (i) any such Lien permitted pursuant to
this paragraph (f) shall be confined solely to the item or
items of property so acquired (including, in the case of any
Acquisition of a corporation through the acquisition of 51% or
more of the voting stock of such corporation, the stock and
assets of any Acquired Subsidiary or Acquiring Subsidiary)
and, if required by the terms of the instrument originally
creating such Lien, other property which is an improvement to,
or is acquired for specific use with, such acquired property;
and (ii) if applicable, any such Lien shall be created within
nine months after, in the case of property, its acquisition,
or, in the case of improvements, their completion;
(g) any Lien renewing, extending or refunding any Lien permitted
by paragraph (f) above; provided that the principal amount of
Debt secured by such Lien immediately prior thereto is not
increased or the maturity thereof reduced and such Lien is not
extended to other property;
(h) any Liens created on shares of capital stock of Cemex Parent
or any of its Subsidiaries solely as a result of the deposit
or transfer of such shares into a trust or a special purpose
vehicle (including any entity with legal personality) of which
such shares constitute the sole assets; provided that (i) any
shares of Subsidiary stock held in such trust, corporation or
entity could be sold by Cemex Parent; and (ii) 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 any member of the Group's interest
in such trust, corporation or entity are applied as provided
under Clause 21.16 (Sales of assets, etc); and provided
further that such Liens may not secure Debt of any member of
the Group (unless permitted under another clause of this
Clause 21.14);
(i) any Liens on securities securing repurchase obligations in
respect of such securities;
(j) any Liens in respect of any Receivables Program Assets which
are or may be sold or transferred pursuant to a Qualified
Receivables Transaction; and
(k) in addition to the Liens permitted by the foregoing clauses
(a) through (j), Liens securing Debt of Cemex Parent and its
Subsidiaries (taken as a whole) not in excess of 5% of the
Adjusted Consolidated Net Tangible Assets of Cemex Parent;
unless, in each case, Cemex Parent has made or caused to be made
effective provision whereby the Obligations hereunder are secured
equally and ratably with, or prior to, the Debt secured by such Liens
(other than Permitted Liens) for so long as such Debt is so secured.
21.15 Consolidations and mergers
With respect to the Obligors only, in one or more related transactions
(a) consolidate with or merge into any other Person or permit any other
Person to merge into it, or (b) directly or indirectly, transfer,
convey, sell, lease or otherwise dispose of all or substantially all of
its properties or assets to any Person unless, with respect to any
transaction described in (a) or (b) above:
(a) immediately after giving effect to such transaction, the
Person formed by any such consolidation or merger, if it was
not an Obligor, or the Person that acquires by transfer,
conveyance, sale, lease or other disposition all or
substantially all of the properties or assets of such Obligor
(any such Person, a "Successor") (i) shall be a company
organised and validly existing under the laws of its place of
incorporation, which in the case of a Successor to the
Borrower or any Guarantor, shall be any of Mexico, the United
States, Canada, France, Belgium, Germany, Italy, Luxembourg,
The Netherlands, Portugal, Spain, Switzerland or the United
Kingdom or any political subdivision thereof, (ii) shall
expressly assume, pursuant to a written agreement in form and
substance satisfactory to the Majority Lenders, all of the
obligations of that Obligor, under each of the Finance
Documents to which that Obligor is party;
(b) in the case of any such transaction involving the Borrower or
any Guarantor, the Borrower or such Guarantor, or the
Successor of any thereof, as the case may be, shall expressly
agree to indemnify each Lender and the Agent against any tax,
levy, assessment or governmental charge payable by withholding
or deduction thereafter imposed on such Lender and/or the
Agent solely as a consequence of such transaction with respect
to any payments under the Finance Documents;
(c) immediately after giving effect to such transaction, including
for purposes of this paragraph (c), the substitution of any
Successor to any Obligor for such Obligor (treating any Debt
or Lien incurred by any Obligor or any Successor to such
Obligor, as a result of such transactions as having been
incurred at the time of such transaction), no Default or Event
of Default shall have occurred and be continuing; and
(d) the Borrower shall have delivered to the Agent an officer's
certificate and an opinion of counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
written agreement is required in connection with such
transaction, such written agreement shall comply with the
relevant provisions of this Clause 21, and that all conditions
precedent provided for in this Agreement relating to such
transaction have been complied with.
21.16 Sales of assets, etc.
Sell, lease or otherwise dispose of any of its assets (including the
capital stock of any Subsidiary), other than (a) inventory, trade
receivables and assets surplus to the needs of the business of Cemex
Parent or any Subsidiary of Cemex Parent sold in the ordinary course of
business and (b) assets not used, usable or held for use in connection
with cement operations and related operations, unless the proceeds of
the sale of such assets are retained by Cemex Parent or such
Subsidiary, as the case may be, and, as promptly as practicable after
such sale (but in any event within 180 days of such sale), the proceeds
are applied to (i) expenditures for property, plant and equipment
usable in the cement industry or related industries; (ii) the repayment
of senior Debt of Cemex Parent or any Subsidiary of Cemex Parent,
whether secured or unsecured; or (iii) investments in companies engaged
in the cement industry or related industries.
21.17 Restricted payments
In the case of Cemex Parent only, declare or pay any dividend (other
than dividends payable solely in common stock of Cemex Parent) on, or
make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of Cemex Parent
(other than any cash payment in respect of pre-existing scheduled
obligations under forward purchase agreements for stock of Cemex Parent
entered into by Cemex Parent or its Subsidiaries with third-party
financial institutions) whether now or hereafter outstanding, or make
any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or obligations of any Person
(collectively, "Restricted Payments") (a) while any Event of Default
described in paragraph (a) or (b) of Clause 22 (Events of Default) or
any Default or Event of Default described in paragraph (d) of Clause 22
(Events of Default) (but only with respect to Clause 21.13 (Financial
condition covenants)) shall have occurred and be continuing or (b) if
any Default or Event of Default would exist after giving effect to such
Restricted Payment.
21.18 Accounting changes
(a) Make or permit any change in accounting policies or reporting
practices, except as required or permitted by Applicable GAAP or (b)
permit the fiscal year of any Obligor to end on a day other than 31
December or change any Obligor's method of determining fiscal quarters,
unless, in the case of paragraph (b), the Borrower shall have entered
into negotiations with the Agent in order to amend the relevant
provisions of this Agreement so as to equitably reflect such change in
the Borrower's fiscal year end or method of calculating fiscal quarters
with the desired result that the criteria for evaluating the Borrower's
financial condition shall be the same after such change as if such
change had not been made (and until such time as such an amendment
shall have been executed and delivered by the Borrower, the Agent and
the Majority Lenders, all financial covenants, standards and terms in
this Agreement shall continue to be calculated or construed as if such
change had not occurred).
21.19 Clauses restricting Subsidiary distributions
Enter into or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary
to (a) make Restricted Payments in respect of any Capital Stock of such
Restricted Subsidiary held by, or pay any Debt owed to, any Obligor or
any other such Restricted Subsidiary, (b) make loans or advances to, or
other investments in, any Obligor or any other such Restricted
Subsidiary or (c) transfer any of its assets to any Obligor or any
other such Restricted Subsidiary, except for such encumbrances or
restrictions existing under or by reason of any restrictions with
respect to a Restricted Subsidiary imposed pursuant to an agreement
that has been entered into in connection with the Disposition of all or
substantially all of the Capital Stock or assets of such Restricted
Subsidiary; provided, however, that nothing in this Clause 21.19 shall
prevent CTW from paying declaring or paying any dividend to the
Borrower.
21.20 Change in nature of business
With respect to the Obligors and all Material Subsidiaries only, make
any material change in the nature of its business as carried on at the
date hereof.
21.21 Margin regulations
Use any part of the proceeds of the Loans for any purpose which would
result in any violation (whether by the Borrower, any Guarantor, the
Agent or the Lenders) of Regulation T, U or X of the Federal Reserve
Board or to extend credit to others for any such purpose, or engage in,
or maintain as one of its important activities, the business of
extending credit for the purpose of purchasing or carrying any margin
stock (as defined in such regulations).
21.22 Ownership of Cemex Spain
Permit the Borrower at any time to own less than an 80% direct (or
indirect if solely through intermediate holding companies which have no
indebtedness and no restrictions on their ability to pay dividends)
voting and equity ownership interest in Cemex Spain, or its successors
or transferees in the event of the merger or consolidation of Cemex
Spain or the transfer, conveyance, sale, lease or other disposition of
all or substantially all its properties and assets in Clause 21.15
(Consolidations and mergers).
21.23 Ownership of the Borrower
Permit Cemex Parent at any time to cease to control, or to own less
than a 90% direct or indirect equity ownership interest in, the
Borrower, or its Successors or transferees in the event of the merger
or consolidation of the Borrower or the transfer, conveyance, sale,
lease or other disposition of all or substantially all its properties
and assets in accordance with Clause 21.15 (Consolidations and
mergers).
21.24 Ownership of Trademark Companies
(a) Permit the Borrower, at any time after 31 December 2003, to
own less than a 99.9% direct voting and equity ownership
interest in CTW and each other Trademark Company, provided
that such interest may be indirect in the case of any
Trademark Company in which CTW owns a 99.9% direct voting and
equity ownership interest.
(b) Permit Cemex Parent at any time to own less than 99.9% direct
or indirect voting and equity ownership interest in each
Trademark Company.
21.25 Incurrence of Debt by Trademark Companies
Permit any Trademark Company at any time to assume, incur or suffer to
exist any Debt or other monetary liability of any kind to any Person
other than any member of the Group except, in the case of any monetary
liability not constituting Debt, in the ordinary course pursuant to its
day to day business activities.
22. EVENTS OF DEFAULT
22.1 Events of Default
If any of the following specified events (each an "Event of Default")
shall occur:
(a) any principal of any Loan is not paid when due in accordance
with the terms hereof; or
(b) any interest on any Loan, any fee or other amount payable
hereunder or under any other Finance Document, is not paid
within three Business Days after any such interest or other
amount becomes due and payable in accordance with the terms
hereof; or
(c) any representation or warranty made or deemed made by any
Obligor herein or in any other Finance Document or that is
contained in any certificate, document or financial or other
statement furnished at any time under or in connection with
this Agreement or any other Finance Document shall prove to
have been incorrect in any material respect on or as of the
date made or deemed to be made and, if remediable, such
failure shall remain unremedied for thirty days after the
earlier of the date on which (i) written notice thereof shall
have been given to the Borrower by the Agent and (ii) a
director of any Obligor becomes aware of such incorrectness;
or
(d) any Obligor shall fail to perform or observe any term,
covenant or agreement contained in Clause 20.1 (Financial
Statements), paragraph (a) of Clause 20.5 (Notification of
default), Clause 21.4 (Conduct of business and preservation of
corporate existence) (with respect to the Borrower's or any
Guarantor's existence only), Clause 21.5 (Inspection of
Property), Clause 21.9 (Pari passu ranking) or Clauses 21.13
(Financial condition covenants) to Clause 21.25 (Incurrence of
debt by trademark companies) of this Agreement; or
(e) any Obligor shall fail to perform or observe any term,
covenant or agreement contained in this Agreement or any other
Finance Document (other than as provided in paragraphs (a) to
(d) of this Clause 22.1), and such default shall continue
unremedied for a period of 30 days after the earlier of the
date on which (i) written notice shall have been given to the
Borrower by the Agent at the request of any Lender and (ii) a
director of any Obligor becomes aware of such failure; or
(f) the occurrence of a default or event of default under any
indenture, agreement or instrument relating to any Material
Debt of any Cemex Parent or any of its Subsidiaries and
(unless any principal amount of such Material Debt is
otherwise due and payable) such default or event of default
results in the acceleration of the maturity of any principal
amount of such Material Debt prior to the date on which it
would otherwise become due and payable; or
(g) the Borrower, any Guarantor or any Material Subsidiary shall
commence a voluntary case or other proceeding seeking
liquidation, reorganisation, concurso mercantil or other
relief with respect to itself or its debts under any
bankruptcy, insolvency, reorganisation or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take
any corporate action to authorise any of the foregoing or the
equivalent thereof under Mexican law (including the Ley de
Concursos Mercantiles) or under Dutch law; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower, any Guarantor or any Material Subsidiary
seeking liquidation, reorganisation or other relief with
respect to it or its debts under any bankruptcy, insolvency,
concurso mercantil or other similar law now or hereafter in
effect (including but not limited to the Ley de Concursos
Mercantiles) or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed
and unstayed for a period of 60 consecutive days; or an order
for relief shall be entered against the Borrower, any
Guarantor or any Material Subsidiaries under any bankruptcy,
insolvency suspension de pagos or other similar law as now or
hereafter in effect; or
(i) a final judgment or judgments or order or orders not subject
to further appeal for the payment of money in an aggregate
amount in excess of U.S.$50,000,000 shall be rendered against
the Borrower, Cemex Parent and/or one or more of the
Subsidiaries of Cemex Parent that are neither discharged nor
bonded in full within 30 days thereafter; or
(j) the obligations of the Borrower under this Agreement or of any
Obligor under this Agreement shall fail to rank at least pari
passu with all other senior unsecured Debt of the Borrower or
such Obligor, as the case may be; or
(k) the Borrower shall contest the validity or enforceability of
any Finance Document or shall deny generally the liability of
the Borrower under any Finance Documents or any Guarantor
shall contest the validity of or the enforceability of their
guarantee hereunder or any obligation of any Guarantor under
Clause 18 (Guarantee and Indemnity) hereof shall not be (or is
claimed by either Guarantor not to be) in full force and
effect;
(l) any governmental or other consent, license, approval, permit
or authorisation which is now or may in the future be
necessary or appropriate under any applicable Requirement of
Law for the execution, delivery, or performance by the
Borrower or any Guarantor of any Finance Document to which it
is a party or to make such Finance Document legal, valid,
enforceable and admissible in evidence shall not be obtained
or shall be withdrawn, revoked or modified or shall cease to
be in full force and effect or shall be modified in any manner
that would have an adverse effect on the rights or remedies of
the Agent or the Lenders; or
(m) any Governmental Authority shall condemn, nationalise, seize
or otherwise expropriate all or any substantial portion of the
property of, or capital stock issued or owned by, the Borrower
or any Guarantor or take any action that would prevent the
Borrower or any Guarantor from performing its obligations
under this Agreement or the other Finance Documents; or
(n) a moratorium shall be agreed or declared in respect of any
Debt of the Borrower or any Guarantor or any restriction or
requirement not in effect on the date hereof shall be imposed,
whether by legislative enactment, decree, regulation, order or
otherwise, which limits the availability or the transfer of
foreign exchange by the Borrower or any Guarantor for the
purpose of performing any material obligation under any
Agreement or any other Finance Document; or
(o) the beneficial ownership (within the meaning of Rule 13d-3
promulgated by the SEC under the Securities Exchange Act of
1934, as amended) of 20% or more in voting power of the
outstanding voting stock of the Borrower or any other
Guarantor is acquired by any Person; provided that the
acquisition of beneficial ownership of capital stock of Cemex
Parent or any other Guarantor by Lorenzo H. Zambrano or any
member of his immediate family shall not constitute an Event
of Default,
then, and in any such event:
(i) if such event is an Event of Default specified in
paragraphs (h) or (i) above with respect to any
Obligor, automatically the Commitments shall
immediately terminate and the Loans (with accrued
interest thereon) and all other amounts owing under
this Agreement and the other Finance Documents shall
immediately become due and payable; and
(ii) if such event is any other Event of Default, either
of the following actions may be taken:
(A) with the consent of the Majority Lenders,
the Agent may, or upon the request of the
Majority Lenders, the Agent shall, by notice
to the Borrower declare the Commitments to
be terminated forthwith, whereupon the
Commitments shall immediately terminate; and
(B) with the consent of the Majority Lenders,
the Agent may, or upon the request of the
Majority Lenders, the Agent shall, by notice
to the Borrower, declare the Loans (with
accrued interest thereon) and all other
amounts owing under this Agreement and the
other Finance Documents to be due and
payable forthwith, whereupon the same shall
immediately become due and payable.
Except as expressly provided above in this Clause, presentment, demand,
protest and all other notices of any kind are hereby expressly waived
by the Borrower.
SECTION 9
CHANGES TO PARTIES
23. CHANGES TO THE LENDERS
23.1 Assignments and transfers by the Lenders
Subject to this Clause 23, a Lender (the "Existing Lender") may:
(a) assign any of its rights and benefits in respect of any
Utilisation; or
(b) transfer by novation any of its rights, benefits and
obligations in respect of any Commitment or Utilisation,
to another bank or financial institution or to a securitisation trust
or fund or (subject to paragraph (a) of Clause 23.2 (Conditions of
assignment or transfer)) other entity (the "New Lender").
23.2 Conditions of assignment or transfer
(a) The Borrower must be given prior notification of any
assignment or transfer becoming effective under Clause 23.1
(Assignments and transfers by the Lenders) and the consent of
the Borrower is required for an assignment or transfer to an
entity which is not a bank or financial institution or a
securitisation trust or fund.
(b) The consent of the Borrower to an assignment or transfer must
not be unreasonably withheld or delayed. The Borrower will be
deemed to have given its consent five Business Days after the
Existing Lender has requested it unless consent is expressly
refused by the Borrower within that time.
(c) An assignment will only be effective on:
(i) receipt by the Agent of written confirmation from the
New Lender that the New Lender will assume the same
obligations to the other Finance Parties as it would
have been under if it was an Original Lender; and
(ii) the satisfaction of the Agent with the results of all
"know your client" or other checks relating to the
identity of any person that it is required by law to
carry out in relation to such assignment to a New
Lender, the completion of which the Agent shall
promptly notify to the Existing Lender and the New
Lender.
(d) A transfer will only be effective if the procedure set out in
Clause 23.5 (Procedure for transfer) is complied with.
(e) An assignment or transfer will be effective upon surrender for
registration of assignment or transfer, by way of an
endorsement (endoso) and delivery of the Notes held by the
Existing Lender evidencing such Loan accompanied by a duly
executed Transfer Certificate, and thereupon one or more new
Notes shall be issued to the New Lender.
(f) If:
(i) a Lender assigns or transfers any of its rights,
benefits or obligations under the Finance Documents
or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor
would be obliged to make a payment to the New Lender
or Lender acting through its new Facility Office
under Clause 13 (Tax gross-up and indemnities) or
Clause 14 (Increased costs),
then the New Lender or Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses
to the same extent as the Existing Lender or Lender acting
through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
(g) Notwithstanding any of the preceding provisions of this Clause
23 to the contrary, for so long as it is a requirement of
Dutch law that each Lender be a Professional Market Party (i)
any Existing Lender shall, at least five Business Days prior
to the date of any proposed assignment, provide to the
Borrower and the Agent information in respect of the
prospective New Lender sufficient to enable the Borrower to
verify the Professional Market Party status of such New Lender
and (ii) no such assignment shall be permitted unless the New
Lender is a Verifiable Professional Market Party or unless the
Borrower determines that such New Lender qualifies as a
Professional Market Party; provided that the Borrower shall be
deemed to have made such determination if, on or prior to the
fifth Business Day after the Existing Lender has provided the
information described in section (i) above, the Borrower has
not made a good faith determination, based on an opinion of
reputable Dutch counsel, and notified the Agent and the
Existing Lender thereof (together with a copy of such opinion
of counsel) in writing, that (x) the Assignee does not qualify
as a Professional Market Party or (y) the Borrower is unable
to determine whether the New Lender qualifies as a
Professional Market Party.
(h) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank of the United
States in accordance with applicable law and without
compliance with the foregoing provisions of this Clause 23.2
provided however, that such pledge or assignment shall not
release such Lender from its obligations hereunder.
23.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of $2,000,
except no such fee shall be payable in connection with an assignment or
transfer to a New Lender upon primary syndication of the Facilities.
23.4 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 23; 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.
23.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 23.2 (Conditions
of assignment or transfer) a transfer is effected in
accordance with paragraph (b) below when the Agent executes an
otherwise duly completed Transfer Certificate delivered to it
by the Existing Lender and the New Lender. The Agent shall, as
soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply
with the terms of this Agreement and delivered in accordance
with the terms of this Agreement, execute that Transfer
Certificate and send a copy to the Borrower.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its
rights and obligations under the Finance Documents
each of the Obligors and the Existing Lender shall be
released from further obligations towards one another
under the Finance Documents and their respective
rights against one another under the Finance
Documents shall be cancelled (being the "Discharged
Rights and Obligations");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor
and the New Lender have assumed and/or acquired the
same in place of that Obligor and the Existing
Lender;
(iii) the Agent, the Arranger, the New Lender and the other
Lenders, shall acquire the same rights and assume the
same obligations between themselves as they would
have acquired and assumed had the New Lender been an
Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer
and to that extent the Agent, the Arranger and the
Existing Lender shall each be released from further
obligations to each other under the Finance
Documents; and
(iv) the New Lender shall become a Party as a "Lender".
23.6 Copy of Transfer Certificate to Borrower
The Agent shall, as soon as reasonably practicable after it has
received a Transfer Certificate, send to the Borrower a copy of that
Transfer Certificate.
23.7 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under the Finance Documents;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation (provided that,
for so long as it is a requirement of Dutch law, such
sub-participant qualifies as a Professional Market Party) in
relation to, or any other transaction under which payments are
to be made by reference to, the Finance Documents; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents
as that Lender shall consider appropriate provided that the person to
whom the information is to be given has entered into a Confidentiality
Undertaking.
23.8 Interest
All interest accrued in the Interest Period in which a transfer is
effective shall be paid to the Existing Lender.
23.9 Existing Lenders
No person may become a Lender under this Agreement until it has
confirmed at the date of this Agreement that it is either (i) a
Professional Market Party or (ii) exempted from the requirement to be a
Professional Market Party because it forms a closed circle (besolten
kring), within the meaning of the Dutch Exemption Regulation, with the
Borrower.
24. CHANGES TO THE OBLIGORS
24.1 Assignments and transfers by Obligors
No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
24.2 Additional Guarantors
(a) Subject to compliance with the provisions of paragraphs (b)
and (c) of Clause 20.6 ("Know your client" checks), the
Borrower may request that any of its wholly owned Subsidiaries
become an Additional Guarantor.
(b) The Borrower shall procure that in respect of (i) each of its
Subsidiaries to whom a sale, lease, transfer or other disposal
is made by an Obligor in accordance with the terms of this
Agreement; (ii) each of its Subsidiaries which is or which is
deemed to be a Material Subsidiary in accordance with the
terms of this Agreement, such Subsidiary or the Holding
Company of such Material Subsidiary (at the election of the
Borrower) or such person respectively become an Additional
Guarantor (unless such Subsidiary or such Material Subsidiary
(in the case of (i) and (ii) respectively) is already a
Guarantor) by:
(A) the Borrower delivering to the Agent a duly
completed and executed Accession Letter; and
(B) the Agent receiving from the Borrower all of
the documents and other evidence referred to
in Part II of Schedule 2 (Conditions
Precedent required to be delivered by an
Additional Guarantor) in relation to that
Additional Guarantor.
(c) The Agent shall notify the Guarantors and the Lenders promptly
upon being satisfied that it has received all the documents
and other evidence listed in Part II of Schedule 2 (Conditions
Precedent required to be delivered by an Additional
Guarantor).
(d) For the purposes of this Clause 24.2 only, a "Holding Company"
means, in relation to a Material Subsidiary, any company or
corporation in respect of which it is a Subsidiary and which
is not in turn a Subsidiary of a Holding Company (as defined
in Clause 1.1 (Definitions)).
24.3 Resignation of Guarantor
A Guarantor (a "Resigning Guarantor") will cease to be a Guarantor if:
(a) it makes a sale, lease, transfer or other disposal of all or
substantially all (but not a part only) of its assets to
another member of the Group which is or becomes a Guarantor in
accordance with paragraph (a) (i) of Clause 24.2 (Additional
Guarantors); or
(b) its Holding Company becomes a Guarantor,
provided that:
(i) such Resigning Guarantor also, if applicable, ceases
concurrently to be a guarantor in respect of any
other indebtedness of the Group or of any member of
the Group;
(ii) such Resigning Guarantor notifies the Agent of any
sale, lease, transfer or other disposal in accordance
with paragraph (a) of this Clause 24.3; and
(iii) the Borrower may not resign as a Guarantor without
the consent of all Lenders.
24.4 Repetition of Representations
Delivery of an Accession Letter constitutes confirmation by the
relevant Affiliate that the Repeating Representations are true and
correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.
SECTION 10
THE FINANCE PARTIES
25. ROLE OF THE AGENT AND THE ARRANGER
25.1 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.
25.2 Duties of the Agent
(a) The Agent shall promptly forward to a Party the original or a
copy of any document (including, but not limited to, the
Borrower's annual financial statements) which is delivered to
the Agent for that Party by any other Party.
(b) The Agent is not obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to
another Party.
(c) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify
the other Finance Parties.
(d) If the Agent is aware of the non-payment of any principal,
interest or fee payable to a Finance Party (other than the
Agent or the Arranger) under this Agreement it shall promptly
notify the other Finance Parties.
(e) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
25.3 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.
25.4 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.
25.5 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.
25.6 Rights and discretions of the Agent
(a) The Agent may rely on:
(i) any representation, notice or document (including,
for the avoidance of doubt, any representation,
notice or document communicating the consent of the
Majority Lenders pursuant to Clause 34.1 (Required
consents)) believed by it to be genuine, correct and
appropriately authorised; and
(ii) any statement made by a director, authorised
signatory or employee of any person regarding any
matters which may reasonably be assumed to be within
his knowledge or within his power to verify.
(b) The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual
knowledge of a Default arising under paragraphs (a)
or (b) of Clause 22 (Events of Default));
(ii) any right, power, authority or discretion vested in
any Party or the Majority Lenders has not been
exercised; and
(iii) any notice or request made by the Borrower (other
than a Utilisation Request or Selection Notice) is
made on behalf of and with the consent and knowledge
of all the Obligors.
(c) The Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other
experts.
(d) The Agent may act in relation to the Finance Documents through
its personnel and agents.
(e) The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this
Agreement.
(f) Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent nor the Arranger is obliged to
do or omit to do anything if it would or might in its
reasonable opinion constitute a breach of any law and
regulation or a breach of a fiduciary duty or duty of
confidentiality.
25.7 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.
25.8 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.
25.9 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 Finance
Document and any officer, employee or agent of the Agent may
rely on this Clause 25 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.
25.10 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).
25.11 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in the European Union as successor by giving
notice to the other Finance Parties and the Borrower.
(b) Alternatively the Agent may resign by giving notice to the
other Finance Parties and the Borrower, in which case the
Majority Lenders (after consultation with the Borrower) may
appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent
in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Agent (after consultation
with the Borrower) may appoint a successor Agent (acting
through an office in the European Union).
(d) The retiring Agent shall, at its own cost, make available to
the successor Agent such documents and records and provide
such assistance as the successor Agent may reasonably request
for the purposes of performing its functions as Agent under
the Finance Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall
be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
this Clause 25. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves
as they would have had if such successor had been an original
Party.
(g) After consultation with the Borrower, the Majority Lenders
may, by notice to the Agent, require it to resign in
accordance with paragraph (b) above. In this event, the Agent
shall resign in accordance with paragraph (b) above.
25.12 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.
25.13 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).
25.14 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.
25.15 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be a Lender, the Agent
shall (in consultation with the Borrower) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
25.16 Agent's Management Time
Any amount payable to the Agent under Clause 15.3 (Indemnity to the
Agent) and Clause 25.10 (Lenders' indemnity to the Agent) shall include
the cost of utilising the Agent's management time or other resources
and will be calculated on the basis of such reasonable daily or hourly
rates as the Agent may notify to the Borrower and the Lenders, and is
in addition to any fee paid or payable to the Agent under Clause 12
(Fees).
25.17 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.
26. 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.
27. SHARING AMONG THE FINANCE PARTIES
27.1 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 28
(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 28
(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 28.5 (Partial payments).
27.2 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 28.5
(Partial payments).
27.3 Recovering Finance Party's rights
(a) On a distribution by the Agent under Clause 27.2
(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.
27.4 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 27.2 (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.
27.5 Exceptions
(a) This Clause 27 shall not apply to the extent that the
Recovering Finance Party would not, after making any payment
pursuant to this Clause 27, 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
28. PAYMENT MECHANICS
28.1 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.
28.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 28.3 (Distributions to an
Obligor), Clause 28.4 (Clawback) and Clause 25.17 (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).
28.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 29 (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.
28.4 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.
28.5 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.
28.6 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.
28.7 Business Days
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding
Business Day (if there is not).
(b) During any extension of the due date for payment of any
principal or Unpaid Sum under this Agreement interest is
payable on the principal or Unpaid Sum at the rate payable on
the original due date.
28.8 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.
28.9 Change of currency
(a) Unless otherwise prohibited by law or regulation, if more than
one currency or currency unit are at the same time recognised
by the central bank of any country as the lawful currency of
that country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in,
the currency of that country shall be translated
into, or paid in, the currency or currency unit of
that country designated by the Agent (after
consultation with the Borrower); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of
that currency or currency unit into the other rounded
up or down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this
Agreement will, to the extent the Agent (acting reasonably and
after consultation with the Borrower) specifies to be
necessary be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank
Market and otherwise to reflect the change in currency.
29. 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.
30. NOTICES
30.1 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 30.5 (Electronic
Communication)) by email.
30.2 Addresses
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in
connection with the Finance Documents is:
(a) in the case of the Borrower, that identified with its name
below;
(b) in the case of each Lender, or any other Obligor, that
notified in writing to the Agent on or prior to the date on
which it becomes a Party; and
(c) in the case of the Agent, that identified with its name below,
or any substitute address or fax number or department or officer as the
Party may notify to the Agent (or the Agent may notify to the other
Parties, if a change is made by the Agent) by not less than five
Business Days' notice.
30.3 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 30.2
(Addresses), if addressed to that department or officer.
(b) Any communication or document to be made or delivered to the
Agent will be effective only when actually received by the
Agent and then only if it is expressly marked for the
attention of the department or officer identified with the
Agent's signature below (or any substitute department or
officer as the Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Agent. The Borrower may make and/or deliver as agent of each
Obligor notices and/or requests on behalf of each Obligor.
(d) Any communication or document made or delivered to the
Borrower in accordance with this Clause 30.3 will be deemed to
have been made or delivered to each of the Obligors.
30.4 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 30.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the
other Parties.
30.5 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.
30.6 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.
30.7 Obligor Agent
(a) Each Obligor (other than the Borrower) by its execution of
this Agreement or an Accession Letter (as the case may be)
irrevocably appoints the Borrower to act on its behalf as its
agent in relation to the Finance Documents and irrevocably
authorises (i) the Borrower on its behalf to supply all
information concerning itself contemplated by this Agreement
to the Finance Parties and to give all notices and
instructions (including, in the case of a Borrower,
Utilisation Requests, Renewal Requests or Selection Notices),
to execute on its behalf any documents required hereunder and
to make such agreements capable of being given or made by any
Obligor notwithstanding that they may affect such Obligor,
without further reference to or consent of such Obligor; and
(ii) each Finance Party to give any notice, demand or other
communication to such Obligor pursuant to the Finance
Documents to the Borrower on its behalf, and in each case such
Obligor shall be bound thereby as though such Obligor itself
had given such notices and instructions (including, without
limitation, any Utilisation Requests, Renewal Requests or
Selection Notices) or executed or made such agreements or
received any notice, demand or other communication.
(b) Every act, agreement, undertaking, settlement, waiver, notice
or other communication given or made by the Borrower, or given
to the Borrower, in its capacity as agent in accordance with
paragraph (a) of this Clause 30.7, in connection with this
Agreement shall be binding for all purposes on such Obligors
as if the other Obligors had expressly made, given or
concurred with the same. In the event of any conflict between
any notices or other communications of the Borrower and any
other Obligor, those of the Borrower shall prevail.
30.8 Use of Websites
(a) The Borrower may satisfy its obligation under this Agreement
to deliver any information in relation to those Lenders (the
"Website Lenders") who accept this method of communication by
posting this information onto an electronic website designated
by the Borrower and the Agent (the "Designated Website") if:
(i) the Agent expressly agrees (after consultation with
each of the Lenders) that it will accept
communication of the information by this method;
(ii) both the Borrower and the Agent are aware of the
address of and any relevant password specifications
for the Designated Website; and
(iii) the information is in a format previously agreed
between the Borrower and the Agent.
If any Lender (a "Paper Form Lender") does not agree to the
delivery of information electronically then the Agent shall
notify the Borrower accordingly and the Borrower shall supply
the information to the Agent in paper form. In any event the
Borrower shall supply the Agent with at least one copy in
paper form of any information required to be provided by it.
(b) The Agent shall supply each Website Lender with the address of
and any relevant password specifications for the Designated
Website following designation of that website by the Borrower
and the Agent.
(c) The Borrower shall promptly upon becoming aware of its
occurrence notify the Agent if:
(i) the Designated Website cannot be accessed due to
technical failure;
(ii) the password specifications for the Designated
Website change;
(iii) any new information which is required to be provided
under this Agreement is posted onto the Designated
Website;
(iv) any existing information which has been provided
under this Agreement and posted onto the Designated
Website is amended; or
(v) the Borrower becomes aware that the Designated
Website or any information posted onto the Designated
Website is or has been infected by any electronic
virus or similar software.
If the Borrower notifies the Agent under paragraph (c)(i) or
paragraph (c)(v) above, all information to be provided by the
Borrower under this Agreement after the date of that notice
shall be supplied in paper form unless and until the Agent and
each Website Lender is satisfied that the circumstances giving
rise to the notification are no longer continuing.
(d) Any Website Lender may request, through the Agent, one paper
copy of any information required to be provided under this
Agreement which is posted onto the Designated Website. The
Borrower shall comply with any such request within ten
Business Days.
31. CALCULATIONS AND CERTIFICATES
31.1 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.
31.2 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.
31.3 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.
31.4 No personal liability
If an individual signs a certificate on behalf of any member of the
Group and the certificate proves to be incorrect, the individual will
incur no personal liability as a result, unless the individual acted
fraudulently in giving the certificate. In this case any liability of
the individual will be determined in accordance with applicable law.
32. 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.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the exercise
of any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies
provided by law or regulation.
34. AMENDMENTS AND WAIVERS
34.1 Required consents
(a) Subject to Clause 34.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of
the Majority Lenders and the Borrower and any such amendment
or waiver will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
(c) The Borrower may effect, as agent of each Obligor, any
amendment or waiver permitted by this Clause 34.
34.2 Exceptions
(a) An amendment or waiver that has the effect of changing or
which relates to:
(i) the definition of "Majority Lenders" or "Optional
Currency" in Clause 1.1 (Definitions);
(ii) an extension to the date of payment of any scheduled
payment of any amount under the Finance Documents;
(iii) a reduction in the Margin or a reduction in the
amount of any payment of principal, interest, fees or
commission payable;
(iv) a change in currency of payment of any amount under
the Finance Documents;
(v) an increase in or an extension of any Commitment;
(vi) a change to the Borrower or any of the Guarantors
other than in accordance with Clause 24 (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 18 (Guarantee and Indemnity), Clause 23
(Changes to the Lenders), Clause 24 (Changes to the
Obligors) or this Clause 34,
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.
35. 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
36. GOVERNING LAW
36.1 This Agreement is governed by English law.
36.2 If the Borrower or any of the Original Guarantors is represented
by an attorney or attorneys in connection with the signing and/or
execution and/or delivery of this Agreement or any agreement or
document referred to herein or made pursuant hereto and the relevant
power or powers of attorney is or are expressed to be governed by the
laws and regulations of a particular jurisdiction, it is hereby
expressly acknowledged and accepted by the other parties hereto that
such laws and regulations shall govern the existence and extent of such
attorney's or attorney's authority and the effects of the exercise
thereof.
37. ENFORCEMENT
37.1 Jurisdiction of English Courts
(a) Each of the parties hereto irrevocably submits to the
jurisdiction of the courts of England and to the jurisdiction
of the courts of its own domicile with respect to any action
initiated against it, to settle any dispute arising out of or
in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this
Agreement) (a "Dispute").
(b) the Parties agree that such courts are the most appropriate
and convenient courts to settle Disputes and accordingly no
Party will argue to the contrary.
(c) To the extent allowed by law or regulation, the Finance
Parties may take proceedings related to a Dispute in any other
courts with jurisdiction or concurrent proceedings in any
number of jurisdictions.
37.2 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) shall irrevocably appoint 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
shall procure that the Process Agent confirms its acceptance
of that appointment in writing on or before the date of this
Agreement; and
(b) agrees that failure by the Process Agent to notify the
relevant Obligor of the process will not invalidate the
proceedings concerned.
38. WAIVER OF SOVEREIGN IMMUNITY
To the extent that Cemex Parent or any Obligor has acquired or
hereafter may acquire any immunity from jurisdiction of any court or
from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, or otherwise) with
respect to itself or its property, Cemex Parent or the relevant
Obligor, as the case may be, hereby irrevocably waives such immunity in
respect of its obligations hereunder to the extent permitted by
applicable law. Without limiting the generality of the foregoing, Cemex
Parent and each Obligor agrees that the waivers set forth in this
Clause 38 shall have force and effect to the fullest extent permitted
under the Foreign Sovereign Immunities Act of 1976 of the United States
and are intended to be irrevocable for the purposes of such Act.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
THE ORIGINAL PARTIES
Part I
The Original Obligors
Part IA
Name of Borrower Registration number (or equivalent, if
any)
New Sunward Holding B.V. 34133556
Address for delivery of Notices:
Amsteldijk 166,
1079LH Amsterdam,
The Netherlands
Tel: (31) 20 642-2048
Fax: (31) 20 644-4095
Attn: Managing Director(s)
Part IB
Name of Original Guarantors Registration numbers (or equivalent,
if any)
CEMEX, S.A. de C.V. numero 21, folios 157 a 186 vuelta,
volumen 16, Libro No. 3, Segundo
Auxiliar Escrituras de Sociedades
Mercantiles, Seccion de Comercio, 11
de junio de 1920, Registro Publico de
la Propiedad y del Comercio de
Monterrey, Nuevo Leon
Address for delivery of Notices:
Ave. Ricardo Margain Zozaya #325
Col. Valle del Campestre
San Pedro Garza Garcia, N.L.
Mexico, 66265
Tel: (52 81) 8888-4115
Fax: (52 81) 8888-4415
Attn: Humberto Lozano
Cemex Mexico, S.A. de C.V. Numero 55, folio 127, volumen 186,
Libro No. 3, Segundo Auxiliar
Escrituras de Sociedades Mercantiles,
Seccion de Comercio, 23 de agosto de
1968, Registro Publico de la Propiedad
y del Comercio de Monterrey, Nuevo
Leon
Address for delivery of Notices:
Ave. Ricardo Margain Zozaya #325
Col. Valle del Campestre
San Pedro Garza Garcia, N.L.
Mexico, 66265
Tel: (52 81) 8888-4115
Fax: (52 81) 8888-4415
Attn: Humberto Lozano
Empresas Tolteca de Mexico, S.A. de Numero 1508, folio 241, volumen 321,
C.V. Libro No. 3, Segundo Auxiliar
Escrituras de Sociedades Mercantiles,
Seccion de Comercio, 22 de septiembre
de 1989, Registro Publico de la
Propiedad y del Comercio de Monterrey,
Nuevo Leon
Address for delivery of Notices:
Ave. Ricardo Margain Zozaya #325
Col. Valle del Campestre
San Pedro Garza Garcia, N.L.
Mexico 66265
Tel: (52 81) 8888-4115
Fax: (52 81) 8888-4415
Attn: Humberto Lozano
Part II
The Original Lenders
- --------------------------------------------------------------------------------
Name of Original Lender Facility A Facility B
Commitment Commitment
US$ US$
- --------------------------------------------------------------------------------
Banco Bilbao Vizcaya Argentaria, S.A. 31,166,666.66 31,166,666.66
BNP Paribas 31,166,666.67 31,166,666.67
Citibank, N.A. Nassau Bahamas Branch 31,166,666.67 31,166,666.67
Calyon Sucursal en Espana 24,250,000 24,250,000
ING Bank N.V. 24,250,000 24,250,000
JPMorgan Chase Bank 24,250,000 24,250,000
Lloyds TSB Bank plc 24,250,000 24,250,000
Mizuho Corporate Bank, Ltd 24,250,000 24,250,000
Banco Santander Central Hispano S.A. 24,250,000 24,250,000
The Royal Bank of Scotland plc 24,250,000 24,250,000
Wachovia Bank, National Association 24,250,000 24,250,000
The Bank of Tokyo-Mitsubishi, Ltd 15,000,000 15,000,000
Fortis Bank S.A./N.V. 15,000,000 15,000,000
Banco de Sabadell, S.A. 10,000,000 10,000,000
Bank of America, N.A. 7,500,000 7,500,000
The Governor and Company of the Bank of
Ireland 7,500,000 7,500,000
Banco Itau Europa, S.A. Sucursal
Financeira Exterior 7,500,000 7,500,000
- --------------------------------------------------------------------------------
TOTALS (US$) 350,000,000 350,000,000
- --------------------------------------------------------------------------------
SCHEDULE 2
CONDITIONS PRECEDENT
Part I
Conditions Precedent to initial Utilisation
1. Obligors
(a) A copy of the current constitutional documents of each Obligor
including copies certified by one director of the relevant
company below of:
(i) the akte van oprichting and statuten of the Borrower
and a copy of the extract from the trade register of
Chamber of Commerce of Amsterdam;
(ii) the estatutos sociales in effect on the First
Utilisation Date of each Guarantor; and
(iii) the power-of-attorney of each Person executing any
Finance Document on behalf of any Obligor, together
with specimen signatures of such Person.
(b) A power of attorney granting a specific individual or
individuals sufficient power to sign the Finance Documents on
behalf of each Original Obligor and in relation to the
Borrower and Cemex Parent, a copy of a resolution of the board
of directors of the Borrower and Cemex Parent:
(i) approving the terms of, and the transactions
contemplated by, the Finance Documents to which it is
a party and resolving that it execute the Finance
Documents to which it is a party;
(ii) authorising a specified person or persons to execute
the Finance Documents to which it is a party on its
behalf; and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents and
notices (including, if relevant, any Utilisation
Request) to be signed and/or despatched by it under
or in connection with the Finance Documents to which
it is a party.
(c) A specimen of the signature of each person authorised by the
resolution or power of attorney referred to in paragraph (b)
above in relation to the Finance Documents.
(d) A certificate of each of the Obligors (signed by an Authorised
Signatory) confirming that borrowing or guaranteeing, as
appropriate, the Total Commitments would not cause any
borrowing, guarantee, security or similar limit binding on any
Obligor to be exceeded.
(e) A certificate of an Authorised Signatory of the relevant
Obligor certifying that each copy document relating to it
specified in this Part I of Schedule 2 is correct, complete
and in full force and effect as at a date no earlier than the
date of this Agreement.
2. Legal opinions
(a) A legal opinion from Clifford Chance LLP, legal advisers to
the Arranger and the Agent in England, as to English law
substantially in the form distributed to the Original Lenders
prior to signing this Agreement satisfactory to the Lenders.
(b) An opinion with respect to the laws and regulations of The
Netherlands from Warendorf, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(c) An opinion with respect to the laws and regulations of Mexico
from Ritch, Heather & Mueller, S.C., substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(d) An opinion from in-house counsel of the Borrower,
substantially in the form distributed to the Original Lenders
prior to signing the Agreement.
3. Other documents and evidence
(a) A copy of this Agreement, duly executed and delivered by each
Party.
(b) A copy of the Notes evidencing the Loans to be made on the
First Utilisation Date, executed and delivered by the Borrower
and each Guarantor, in favour of each Lender.
(c) True and current copies of:
(i) audited consolidated financial statements of each of
Cemex Parent and its Subsidiaries and Cemex Spain and
its Subsidiaries for the 2004 fiscal year;
(ii) audited unconsolidated financial statements of the
Borrower and each Guarantor other than Cemex Parent
for the 2004 fiscal year; and
(iii) unaudited unconsolidated interim financial statements
of the Borrower and each Guarantor other than Cemex
Parent for the quarter ended 31 March 2005.
(d) A notice of prepayment and cancellation relating to all loans
outstanding, and facilities available, under the Existing NSH
Agreement, specifying the First Utilisation Date as the date
on which such prepayment and cancellation is to take effect.
(e) Evidence that Cemex UK Limited has accepted its appointment as
the Obligors' process agent to receive service of process in
relation to any proceedings before the English Courts in
connection with any Finance Document.
Part II
Conditions Precedent required to be delivered by an Additional Guarantor
1. Obligors
(a) An Accession Letter, duly executed by the Additional Guarantor
and the Borrower.
(b) A copy of the constitutional documents of the Additional
Guarantor.
(c) A copy of a resolution of the board of directors of the
Additional Guarantor:
(i) approving the terms of, and the transactions
contemplated by, the Accession Letter and this
Agreement and resolving that it execute the Accession
Letter;
(ii) authorising a specified person or persons to execute
the Accession Letter on its behalf; and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents and
notices (including, if relevant, any Utilisation
Request) to be signed and/or despatched by it under
or in connection with this Agreement.
(d) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (c) above.
(e) Should the legal advisers of the Lenders consider it
advisable, a copy of a resolution signed by all the holders of
the issued shares of the Additional Guarantor, approving the
terms of, and the transactions contemplated by, the Finance
Documents to which the Additional Guarantor is a party.
(f) A certificate of the Additional Guarantor (signed by an
Authorised Signatory) confirming that guaranteeing the Total
Commitments would not cause any guaranteeing or similar limit
binding on it to be exceeded.
(g) A certificate of an Authorised Signatory of the Additional
Guarantor certifying that each copy document listed in this
Part II of Schedule 2 is correct, complete and in full force
and effect as at a date no earlier than the date of the
Accession Letter.
2. Legal opinions
(a) A legal opinion of the legal advisers to the Additional
Guarantor in form and substance reasonably satisfactory to the
legal advisers of the Lenders.
(b) A legal opinion of Clifford Chance, or other firm that can
opine for the Additional Guarantor if not Clifford Chance,
legal advisers to the Lenders.
3. Other documents and evidence
(a) Evidence that any process agent referred to in Clause 37.2
(Service of process) has accepted its appointment.
(b) A copy of any other Authorisation or other document, opinion
or assurance which the Agent considers (after having taken
appropriate legal advice) to be necessary or desirable (if it
has notified the Additional Guarantor and the Borrower
accordingly) in connection with the entry into and performance
of the transactions contemplated by any Finance Document or
for the validity and enforceability of any Finance Document.
(c) The Original Financial Statements of the Additional Guarantor.
SCHEDULE 3
REQUESTS
Part I
Utilisation Request
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
Cemex - $700,000,000 Term and Revolving Facilities Agreement
dated __________ 2005 (the "Agreement")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined
in the Agreement have the same meaning in this Utilisation Request
unless given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business Day,
the next Business Day)
Facility to be utilised: [Facility A]/[Facility B]*
Currency of Loan: [ ]
Amount: [ ] or, if less, the Available Facility
Interest Period: [ ]
3. We confirm that, to the extent applicable, each condition specified in
Clause 4.2 (Further conditions precedent) is satisfied or waived on the
date of this Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
6. Terms used in this Utilisation Request which are not defined in this
Utilisation Request but are defined in the Agreement shall have the
meaning given to those terms in the Agreement.
Yours faithfully
.......................................
authorised signatory for
[New Sunward Holding B.V.]
NOTES:
* delete as appropriate
Part II
Selection Notice
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
Cemex - $700,000,000 Term and Revolving Facilities Agreement
dated __________ 2005 (the "Agreement")
1. We refer to the Agreement. This is a Selection Notice. Terms defined in
the Agreement have the same meaning in this Selection Notice unless
given a different meaning in this Selection Notice.
2. We refer to the Facility A Loan with an Interest Period ending on [ ].
3. [We request that the above Facility A Loan be divided into [O] term
loans with the following Interest Periods:]
or
[We request that the next Interest Period for the Facility A Loan is
[ ].]
4. This Selection Notice is irrevocable.
5. Terms used in this Selection Notice which are not defined in this
Selection Notice but are defined in the Agreement shall have the
meaning given to those terms in the Agreement.
Yours faithfully
.....................................
authorised signatory for
[New Sunward Holding B.V.]
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the
Bank of England and/or the Financial Services Authority (or, in either
case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate
(the "Additional Cost Rate") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per
annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by that
Lender to the Agent. This percentage will be certified by that Lender
in its notice to the Agent to be its reasonable determination of the
cost (expressed as a percentage of that Lender's participation in all
Loans made from that Facility Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of loans
made from that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan:
AB + C(B - D) + E x 0.01
------------------------ per cent. per annum.
100 - (A + C)
(b) in relation to a Loan in any currency other than sterling:
E x 0.01
-------- per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which that Lender is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is the percentage rate of interest (excluding the Margin and
the Mandatory Cost and, if the Loan is an Unpaid Sum, the
additional rate of interest specified in paragraph (a) of
Clause 9.3 (Default interest)) payable for the relevant
Interest Period on the Loan.
C is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of
England to the Agent on interest bearing Special Deposits.
E is designed to compensate Lenders for amounts payable under
the Fees Rules and is calculated by the Agent as being the
average of the most recent rates of charge supplied by the
Reference Banks to the Agent pursuant to paragraph 6 below and
expressed in pounds per (pound)1,000,000.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the
meanings given to them from time to time under or pursuant to
the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England;
(b) "Fees Rules" means the rules on periodic fees contained in the
FSA Supervision Manual or such other law or regulation as may
be in force from time to time in respect of the payment of
fees for the acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees
Rules under the activity group A.1 Deposit acceptors (ignoring
any minimum fee or zero rated fee required pursuant to the
Fees Rules but taking into account any applicable discount
rate); and
(d) "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority,
supply to the Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being
the average of the Fee Tariffs applicable to that Reference Bank for
that financial year) and expressed in pounds per (pound)1,000,000 of
the Tariff Base of that Reference Bank.
8. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information
on or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require
for such purpose.
Each Lender shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall
be determined by the Agent based upon the information supplied to it
pursuant to paragraphs 7 and 8 above and on the assumption that, unless
a Lender notifies the Agent to the contrary, each Lender's obligations
in relation to cash ratio deposits and Special Deposits are the same as
those of a typical bank from its jurisdiction of incorporation with a
Facility Office in the same jurisdiction as its Facility Office.
10. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is
true and correct in all respects.
11. The Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each
Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
12. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
13. The Agent may from time to time, after consultation with the Borrower
and the Lenders, determine and if so requested by any Lender, notify to
all Parties any amendments which are required by such Lender to be made
to this Schedule in order to comply with any change in law or
regulation or any requirements from time to time imposed by the Bank of
England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: [Agent]
From: [The Existing Lender] (the "Existing Lender") and [The New Lender]
(the "New Lender")
Dated:
Cemex - $700,000,000 Term and Revolving Facilities Agreement
dated __________ 2005 (the "Agreement")
1. We refer to the Agreement. This is a Transfer Certificate. Terms
defined in the Agreement have the same meaning in this Transfer
Certificate unless given a different meaning in this Transfer
Certificate.
2. We refer to Clause 23.5 (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 23.5 (Procedure for transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention
details for notices of the New Lender for the purposes of
Clause 30.2 (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 23.4
(Limitation of responsibility of Existing Lenders).
4. This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts
were on a single copy of this Transfer Certificate.
5. We confirm that we have carried out and are satisfied with the results
of all compliance checks we consider necessary in relation to our
participation in the Facilities.
6. This Transfer Certificate is governed by English law.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, email, fax number and attention details for notices
and account details for payments,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [o].
[Agent]
SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: [Agent]
From: [Borrower]
Dated:
Dear Sirs
Cemex - $700,000,000 Term and Revolving Facilities Agreement
dated __________ 2005 (the "Agreement")
1. We refer to the Agreement. This is a Compliance Certificate. Terms
defined in the Agreement have the same meaning when used in this
Compliance Certificate unless given a different meaning in this
Compliance Certificate.
2. We confirm that:
(a) Pursuant to Clause 21.13 (Financial condition covenants) the
financial condition of the Group as of [ ] evidenced by the
consolidated financial statements for the financial year/first
half/second half of the financial year then ended comply with
the following conditions:
[___]
(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.(1)
Signed: ........................................
Authorised Signatory of New Sunward Holding B.V.
- ---------------------------
(1) If a Default or Event of Default has occurred and is continuing, a statement
as to the nature thereof and the action that the Borrower has taken and
proposes to take with respect thereto.
SCHEDULE 7
FORM OF LMA CONFIDENTIALITY UNDERTAKING
[Letterhead of Existing Bank]
To:
============================================
| [insert name of Potential Lender]
============================================
Re: The Facility
============================================
Borrower:
Date:
Amount:
Agent:
============================================
Dear Sirs
We understand that you are considering participating in the Facility. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
1. Confidentiality Undertaking
(a) You undertake to keep the Confidential Information
confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the
Confidential Information is protected with security measures
and a degree of care that would apply to your own confidential
information;
(b) to keep confidential and not disclose to anyone the fact that
the Confidential Information has been made available or that
discussions or negotiations are taking place or have taken
place between us in connection with the Facility;
(c) to use the Confidential Information only for the Permitted
Purpose;
(d) to use all reasonable endeavours to ensure that any person to
whom you pass any Confidential Information (unless disclosed
under paragraph 2(b) below) acknowledges and complies with the
provisions of this letter as if that person were also a party
to it, and
(e) not to make enquiries of any member of the Group or any of
their officers, directors, employees or professional advisers
relating directly or indirectly to the Facility.
2. Permitted Disclosure
We agree that you may disclose Confidential Information:
(a) to members of the Participant Group and their officers,
directors, employees and professional advisers to the extent
necessary for the Permitted Purpose and to any auditors of
members of the Participant Group;
(b) (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where required by the
rules of any stock exchange on which the shares or other
securities of any member of the Participant Group are listed
or (iii) where required by the laws or regulations of any
country with jurisdiction over the affairs of any member of
the Participant Group;
(c) with the prior written consent of us and the Borrower.
3. Notification of Required or Unauthorised Disclosure
You agree (to the extent permitted by law) to inform us of the full
circumstances of any disclosure under paragraph 2(b) or upon becoming
aware that Confidential Information has been disclosed in breach of
this letter.
4. Return of Copies
If we so request in writing, you shall return all Confidential
Information supplied to you by us and destroy or permanently erase all
copies of Confidential Information made by you and use all reasonable
endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such
Confidential Information and any copies made by them, in each case save
to the extent that you or the recipients are required to retain any
such Confidential Information by any applicable law, rule or regulation
or by any competent judicial, governmental, supervisory or regulatory
body or in accordance with internal policy, or where the Confidential
Information has been disclosed under paragraph 2(b)(3) above.
5. Continuing Obligations
The obligations in this letter are continuing and, in particular, shall
survive the termination of any discussions or negotiations between you
and us. Notwithstanding the previous sentence, the obligations in this
letter shall cease (a) if you become a party to or otherwise acquire
(by assignment or sub-participation) an interest, direct or indirect,
in the Facility or (b) twelve months after you have returned all
Confidential Information supplied to you by us and destroyed or
permanently erased all copies of Confidential Information made by you
(other than any such Confidential Information or copies which have been
disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or
which, pursuant to paragraph 4 above, are not required to be returned
or destroyed).
6. No Representation; Consequences of Breach, etc.
You acknowledge and agree that:
(a) neither we, [nor our principal] nor any member of the Group
nor any of our or their respective officers, employees or
advisers (each a "Relevant Person") (i) make any
representation or warranty, express or implied, as to, or
assume any responsibility for, the accuracy, reliability or
completeness of any of the Confidential Information or any
other information supplied by us or any member of the Group or
the assumptions on which it is based or (ii) shall be under
any obligation to update or correct any inaccuracy in the
Confidential Information or any other information supplied by
us or any member of the Group or be otherwise liable to you or
any other person in respect to the Confidential Information or
any such information; and
(b) we [or our principal] or members of the Group may be
irreparably harmed by the breach of the terms of this letter
and damages may not be an adequate remedy; each Relevant
Person may be granted an injunction or specific performance
for any threatened or actual breach of the provisions of this
letter by you.
7. No Waiver; Amendments, etc.
This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject
of this letter. No failure or delay in exercising any right, power or
privilege hereunder will operate as a waiver thereof nor will any
single or partial exercise of any right, power or privilege preclude
any further exercise thereof or the exercise of any other right, power
or privileges hereunder. The terms of this letter and your obligations
hereunder may only be amended or modified by written agreement between
us.
8. Inside Information
You acknowledge that some or all of the Confidential Information is or
may be price-sensitive information and that the use of such information
may be regulated or prohibited by applicable legislation relating to
insider dealing and you undertake not to use any Confidential
Information for any unlawful purpose.
9. No Front Running
(a) You agree that until primary syndication of the Facility has
been completed and allocations released, you will not, and
will procure that no other member of the Participation Group
will:
(i) undertake any Front Running;
(ii) enter into (or agree to enter into) any agreement
with any bank, financial institution or other third
party which to your knowledge may be approached to
become a syndicate member, under which that bank,
financial institution or other third party shares any
risk or participates in any exposure of any Lender
under the Facility; or
(iii) offer to make any payment or other compensation of
any kind to any bank, financial institution or third
party for its participation (direct or indirect) in
the Facility.
(b) Neither you nor any other member of the Participant Group has
engaged in any Front Running:
(i) if you or any other member of the Participant Group
engages in any Front Running before the close of
primary syndication we may suffer loss or damage and
your position in future financings with us and the
Borrower may be prejudiced; and
(ii) if you or any other member of the Participant Group
engages in any Front Running before the close of
primary syndication we retain the right not to
allocate to you a commitment under the Facility.
For the purpose "Front Running" means the process of:
(c) communicating with any bank, financial institution or third
party which, to its knowledge, may be approached to become a
syndicate member with a view of encouraging, or with the
result that such bank or financial institution is encouraged,
to await the secondary market in respect of participation in
the Facility; and/or
(d) actually making a price (generally or to a specific bank,
financial institution or third party) in respect of a
participation in the Facility.
10. Nature of Undertakings
The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also given
for the benefit of [our principal,](4) the Borrower and each other
member of the Group.
11. Third Party Rights
(a) Subject to paragraph 6 and paragraph 9 the terms of this
letter may be enforced and relied upon only by you and us and
the operation of the Contracts (Rights of Third Parties) Act
1999 (the "Third Parties Act") is excluded.
(b) Notwithstanding any provisions of this letter, any Relevant
Person or any member of the Group may enjoy the benefit of the
terms of paragraphs 6 and 9 subject to and in accordance with
this paragraph 10 and the provisions of the Third Parties Act.
(c) The parties to this letter do not require the consent of the
Relevant Persons to rescind or vary this letter at any time.
12. Governing Law and Jurisdiction
(a) This letter (including the agreement constituted by your
acknowledgement of its terms) is governed by English law.
(b) The parties submit to the non-exclusive jurisdiction of the
English courts.
13. Definitions
In this letter (including the acknowledgement set out below) terms
defined in the Agreement shall, unless the context otherwise requires,
have the same meaning and:
"Confidential Information" means any information relating to the
Borrower, the Group, the Agreement and the Facility including, without
limitation, the information memorandum, provided to you by us or any of
our affiliates or advisers, in whatever form, and includes information
given orally and any document, electronic file or any other way of
representing or recording information which contains or is derived or
copied from such information but excludes information that (a) is or
becomes public knowledge other than as a direct or indirect result of
any breach of this letter or (b) is known by you before the date the
information is disclosed to you by us or any of our affiliates or
advisers or is lawfully obtained by you thereafter, other than from a
source which is connected with the Group and which, in either case, as
far as you are aware, has not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality;
"Group" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as
each such term is defined in the Companies Act 1985);
"Participant Group" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985; and
"Permitted Purpose" means considering and evaluating whether to enter
into the Facility.
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
....................................
For and on behalf of
[Existing Lender]
To: [Existing Lender]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
....................................
For and on behalf of
[Potential New Lender]
SCHEDULE 8
TIMETABLE
Loans in euro, Loans in other
dollars, yen or currencies
sterling
Agent notifies the Borrower if a currency is approved as an - U-4
Optional Currency in accordance with Clause 4.3 (Conditions
relating to Optional Currencies)
Delivery of a duly completed Utilisation Request (Clause 5.1 U-3 U-3
(Delivery of a Utilisation Request)) or a Selection Notice
(Clause 10.1 (Selection of Interest Periods)) 11.00am 11.00am
Agent determines (in relation to a Utilisation) the Base Currency U-3 U-3
Amount of the Loan, if required under paragraph (c) of Clause 5.4
(Lenders' participation) and notifies the Lenders of the Loan in 3.00pm 3.00pm
accordance with Clause 5.4 (Lenders' participation)
Agent receives a notification from a Lender under Clause 6.2 U-2 U-2
(Unavailability of a currency)
9.30am 9.30am
Agent gives notice in accordance with Clause 6.2 (Unavailability U-2 U-2
of a currency)
10.30am 10.30am
LIBOR or EURIBOR is fixed Quotation Day as of Quotation Day as of
11:00am New York 11:00am New York
time in respect of time in respect of
LIBOR and as of LIBOR
11.00am New York
time in respect of
EURIBOR
"U" = date of utilisation
"U-X" = X Business Days prior to date of utilisation
SCHEDULE 9
FORM OF ACCESSION LETTER
To: [Agent ]
From: [Borrower]
Dated:
Dear Sirs
Cemex - $700,000,000 Term and Revolving Facilities Agreement
dated __________ 2005 (the "Agreement")
1. [Additional Guarantor] agrees to become an Additional Guarantor and to
be bound by the terms of the Facility Agreement as an Additional
Guarantor pursuant to Clause 24 (Changes to the Obligors) of the
Facility Agreement. [Additional Guarantor] is a company duly
incorporated under the laws and regulations of [name of relevant
jurisdiction].
2. [Additional Guarantor's] administrative details are as follows:
Address:
Fax No:
Attention:
3. This Accession Letter is governed by English law and is entered into by
deed.
Signed:............................ Signed:............................
[Authorised Signatory of Additional [Authorised Signatory of New
Guarantor] Sunward Holding BV]
[____]
SCHEDULE 10
PERMITTED LIENS
CEMEX, S.A. de C.V.
LIEN SCHEDULE
AS OF 06/20/2005
(Figures in millions of US Dollars)
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Company Lender Lien Concept Balance
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
CEMEX, Inc. GE Capital (FKIT 279,280) Equipment related with the credit $0.748
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Kosmos Cement Company First Corp (FKIT 101649) Equipment related with the credit $0.014
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
CEMEX, Inc. Hampton Land related with the credit $0.230
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Mineral Resource Technologies, Inc. Met-South, Inc. Ash storage facility $0.158
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
TOTAL $1.149
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
AS OF 03/31/2005
(Figures in millions of US Dollars)
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Company Lender Lien Concept Balance
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
CEMEX, Inc. GE Capital (FKIT 279,280) Equipment related with the credit $0.821
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Kosmos Cement Company First Corp (FKIT 101649) Equipment related with the credit $0.019
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
CEMEX, Inc. Hampton Land related with the credit $0.236
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Mineral Resource Technologies, Inc. Met-South, Inc. Ash storage facility $0.170
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Cemex, S.A. Deutsche Bank Collateral $12.000
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Cementownia Rudniki S.A. SOCIETE GENERALE Plant Equipment $14.800
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
BETON PRET DE L'EST SOCIETE GENERALE Equipment related with the credit $0.154
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
A Beton Viacolor Terko Rt. Raiffeisen Bank Mortgage $1.750
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Danubiusbeton Dunantul Kft. Raiffeisen Bank Mortgage $1.500
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
4K Beton (Cemex) A/S, Denmark Nordea Leasing; Denmark Leased equipment $1.421
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Cemex, Latvia Disko Leasing GMBH Truck finance lease $0.226
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Transbeton Lieferbeton Raiffeisen Bank Equipment related with the credit $0.510
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Transbeton Lieferbeton Raiffeisen Bank Equipment related with the credit $0.445
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Transbeton Lieferbeton Raiffeisen Bank Equipment related with the credit $0.320
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Betonring Sud Raiffeisen Bank Equipment related with the credit $0.582
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Transportbeton Hutten GmbH & Co. KG Dresdner Bank AG Land related with the credit $0.366
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
X. Buchenrieder GmbH & Co.
Transportbeton KG Raiffeisenbank Land related with the credit $1.200
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Wunder Kies GmbH & Co. KG (7724) Kreissparkasse Schwarzenbek Land related with the credit $0.313
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Wunder Kies GmbH & Co. KG (7725) Kreissparkasse Schwarzenbek Land related with the credit $0.117
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Wunder Kies GmbH & Co. KG (7725) Landesbank Kiel Land related with the credit $0.117
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Wunder Kies GmbH & Co. KG (7726) Kreissparkasse Schwarzenbek Land related with the credit $0.313
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Wunder Kies GmbH & Co. KG (7726) Landesbank Kiel Land related with the credit $0.313
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Wunder Kies GmbH & Co. KG (7727) Kreissparkasse Schwarzenbek Land related with the credit $0.210
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Quarzsandwerk Wellmersdorf GmbH & Co. KG Raiffeisenbank Land related with the credit $0.300
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Wunder Kies GmbH & Co. KG LGS Sparkassen Leasing Finance Lease for aggregates washing $0.567
unit
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Rudersdorfer Zement GmbH Rudersdorfer Logistik GmbH Finance Lease for mixing facility $0.257
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Betonforderung Nordwest Hanseatische Leasing Finance Lease for concrete pump $0.267
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Cemex Deutschland AG KGAL Asset Rental Equipment related with the credit $14.615
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
ROMBUS LEASING/RMC (UK) ING HP equipment finance $1.727
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Cemex Co., KG ING Equipment related with the credit $21.807
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Cemex Co., KG ING Equipment related with the credit $62.819
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
Cemex Co., KG Lloyds TSB Equipment related with the credit $6.931
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
TOTAL $147.193
- ---------------------------------------- ------------------------------ ------------------------------------ -------------------
SCHEDULE 11
LITIGATION
A description of material regulatory and legal matters affecting Cemex
Parent or any of its Subsidiaries is provided below.
Tariffs
U.S. Anti-Dumping Sunset Reviews
Under the U.S. anti-dumping and countervailing duty laws, the Commerce
Department and the International Trade Commission, or ITC, are required to
conduct "sunset reviews" of outstanding anti-dumping and countervailing duty
orders and suspension agreements every five years. At the conclusion of these
reviews, the Commerce Department is required to terminate the order or
suspension agreement unless the agencies have found that termination is likely
to lead to continuation or recurrence of dumping, or a subsidy in the case of
countervailing duty orders, and material injury. Under special transition rules,
the first sunset reviews commenced in August 1999 for cases involving gray
Portland cement and clinker from Mexico and Venezuela (described below), which
had orders and agreements issued before 1995, and were concluded by the Commerce
Department in July 2000 and by the ITC in October 2000.
In July 2000, the Commerce Department determined not to revoke the
anti-dumping order on imports from Mexico. On October 5, 2000, the ITC found
likelihood of injury to the U.S. industry and determined not to revoke this
anti-dumping order. Thus, the order remains in place. On September 19, 2001,
Cemex Parent filed a petition for a "changed circumstances" review. The ITC
decided in December 2001 not to initiate such a review. Cemex Parent has
appealed the ITC's decision in the "sunset review" and the "changed
circumstances" review to NAFTA. In January 2005, a NAFTA Panel was formed to
review the ITC's sunset review determination. On April 7, 2005, the NAFTA Panel
heard oral arguments, but had not issued its determination as of the date of
this annual report.
U.S. Anti-Dumping Rulings--Mexico
Cemex Parent's exports of Mexican gray cement from Mexico to the United
States are subject to an anti-dumping order that was imposed by the Commerce
Department on August 30, 1990. Pursuant to this order, firms that import gray
Portland cement from Cemex Parent's Mexican operations in the United States must
make cash deposits with the U.S. Customs Service to guarantee the eventual
payment of anti-dumping duties.
Mexican importers' deposits are being liquidated in stages, as appeals
are exhausted for each annual review period. When the final anti-dumping rate
for any review period causes the amount due to exceed the amount that was
deposited, the Mexican importers are required to pay the difference with
interest. When the final anti-dumping rate for any review period is lower than
the amount that was deposited, the U.S. Customs Service refunds the difference,
with interest, to the Mexican importers.
As of December 31, 2004, CEMEX Corp., as the parent company of Cemex
Parent's U.S. subsidiaries that import Mexican cement into the United States,
had accrued liabilities of U.S.$103.6 million, including accrued interest, for
the difference between the amount of anti-dumping duties paid on imports and the
latest findings by the Commerce Department in its administrative reviews.
The Commerce Department has published its final dumping determinations
for the first, second, third, fourth, fifth and seventh review periods. The
Commerce Department's final results of its final determinations for the sixth,
eighth, ninth, tenth, eleventh, twelfth and thirteenth review periods have also
been published, but have been suspended pending review by NAFTA panels.
On October 20, 2003, the NAFTA Extraordinary Challenge Committee upheld
the NAFTA Panel reviewing the final results of the fifth administrative review,
covering the period August 1, 1994 -- July 1, 1995. The NAFTA Panel upheld the
Commerce Department's remand results which lowered the antidumping duty margin
for imports during the fifth review period to 44.9% ad valorem. The Customs
Service has completed liquidating entries of cement from Mexico made during the
fifth review period.
On November 25, 2003, the NAFTA Panel reviewing the final results of
the seventh review period upheld the Commerce Department's remand results of the
seventh review period. The remand results lowered the antidumping margin for
imports made during the seventh review period to 37.3% ad valorem. The Customs
Service has begun liquidating all entries of cement from Mexico made during the
seventh review period.
On September 16, 2003, the Commerce Department issued its final
determination covering the twelfth review period, commencing on August 1, 2001
and ending on July 31, 2002. The Commerce Department determined that the
antidumping margin was 80.75% ad valorem. The final results for the twelfth
review period established a cash deposit rate for imports of gray Portland
cement and cement clinker from Mexico made on or after September 16, 2003. The
cash deposit rate was established at $52.41 per ton, which remained in effect
until the final results of the thirteenth review period were published.
The latest final determination by the Commerce Department covering the
thirteenth review period, commencing on August 1, 2002 and ending on July 31,
2003, was issued on December 29, 2004. The Commerce Department determined that
the antidumping margin was 54.97% ad valorem. The final results for the
thirteenth review period set the cash deposit rate for imports of gray Portland
cement and cement clinker from Mexico made on or after December 29, 2004. The
cash deposit rate was set at $32.85 per ton, which will remain in effect until
the final results of the fourteenth review period are published.
The status of each period still under review or appeal is as follows:
Period Cash Deposits Status
8/1/95-7/31/96 61.85% 37.49% determined by the Commerce
(effective 5/5/1997) Department upon review. Liquidation
suspended pending NAFTA panel review.
8/1/97-7/31/98 73.69%, 35.88% and 37.49% 45.98% determined by the Commerce
(effective 5/4/1998) Department upon review. Liquidation
suspended pending NAFTA panel review.
8/1/98-7/31/99 37.49%, 49.58% 38.65% determined by the Commerce
(effective 3/17/1999) Department upon review. Liquidation
suspended pending NAFTA panel review.
8/1/99-7/31/00 49.58%, 45.98% 50.98% determined by the Commerce
(effective 3/16/2000) Department upon review. Liquidation
suspended pending appeal to NAFTA
panel review.
8/1/00-7/31/01 49.58%, 38.65% 73.74% determined by the Commerce
(effective 5/14/2001) Department upon review. Liquidation
suspended pending appeal to NAFTA
panel review.
8/1/01-7/31/02 38.65%, 50.98% 80.75% determined by the Commerce
(effective 3/19/2002) Department upon review. Liquidation
suspended pending appeal to NAFTA
panel review.
8/1/02 - 7/31/03 50.98%, 73.74% 54.97% determined by the Commerce
(effective 1/14/2003) Department upon review. Liquidation
suspended pending appeal to NAFTA
Panel.
8/1/03 - 7/31/04 73.74%, U.S.$52.41 per ton Subject to review by the Commerce
(effective 10/15/2003) Department.
8/01/04 - to date U.S.$52.41 per ton, U.S.$32.85 Subject to review by the Commerce
per ton Department.
(effective 12/29/2004)
U.S. Anti-Dumping Rulings --Venezuela
On May 21, 1991, U.S. producers of gray cement and clinker filed
petitions with the Department of Commerce and the ITC claiming that imports of
gray cement and clinker from Venezuela were subsidized by the Venezuelan
government and were being dumped into the U.S. market. The producers asked the
U.S. government to impose anti-dumping and countervailing duties on these
imports. The Commerce Department initially found that CEMEX Venezuela had a
dumping margin of 49.2%. Rather than proceeding with the final Commerce
Department and ITC determinations, CEMEX Venezuela and the Commerce Department
entered into an Anti-Dumping Suspension Agreement on February 11, 1992. Under
the Anti-Dumping Suspension Agreement, CEMEX Venezuela agreed not to sell gray
cement or clinker in the United States at a price less than the "foreign market
value." On October 5, 2000, the ITC determined that terminating the Anti-Dumping
Suspension Agreement involving imports from Venezuela would not likely lead to a
continuation or recurrence of injury to the U.S. market, and voted to terminate
such agreement. Consequently, on November 8, 2000, the Commerce Department
issued a notice terminating the Anti-Dumping Suspension Agreement covering
imports of cement from Venezuela. On July 28, 2003, the United States Court of
International Trade, or CIT, upheld the Commerce Department's decision to
terminate the Suspension Agreement. The U.S. cement industry appealed the
decision of the Court of International Trade to the Court of Appeals for the
Federal Circuit. On December 14, 2004, the Court of Appeals for the Federal
Circuit upheld the CIT's decision affirming the Commerce Department's
termination of the Suspension Agreement. Thus, all litigation involving the
Venezuelan Suspension Agreement has been completed and imports of cement from
Venezuela are free of all antidumping restrictions.
Anti-Dumping in Taiwan
Five Taiwanese cement producers -- Asia Cement Corporation, Taiwan
Cement Corporation, Lucky Cement Corporation, Hsing Ta Cement Corporation and
China Rebar -- filed before the Tariff Commission under the Ministry of Finance
(MOF) of Taiwan an anti-dumping case involving imported gray Portland cement and
clinker from the Philippines and Korea.
In July 2001, the MOF informed the petitioners and the respondent
producers in exporting countries that a formal investigation had been initiated.
Among the respondents in the petition are APO, Rizal and Solid, indirect
subsidiaries of CEMEX.
In June 2002, the International Trade Commission under the Ministry of
Economic Affairs (ITC-MOEA) notified respondent producers that its final injury
investigation concluded that the imports from South Korea and the Philippines
have caused material injury to the domestic industry in Taiwan.
In July 2002, the MOF notified the respondent producers that a dumping
duty would be imposed on Portland cement and clinker imports from the
Philippines and South Korea commencing from July 19, 2002. The duty rate imposed
on imports from APO, Rizal and Solid was 42%.
In September 2002, APO, Rizal and Solid filed before the Taipei High
Administrative Court an appeal in opposition to the anti-dumping duty imposed by
the MOF. In August 2004, Cemex Parent received a copy of the decision of the
Taipei Administrative High Court, which was adverse to its appeal. The decision
has since become final.
Tax Matters
As of December 31, 2004, Cemex Parent and some of its Mexican
subsidiaries have been notified of several tax assessments determined by the
Mexican tax office with respect to the tax years from 1992 through 1996 in a
total amount of Ps3,638.6 million. The tax assessments are based primarily on:
(i) recalculations of the inflationary tax deduction, since the tax authorities
claim that "Advance Payments to Suppliers" and "Guaranty Deposits" are not by
their nature credits, (ii) disallowed restatement of tax loss carryforwards in
the same period in which they occurred, (iii) disallowed determination of tax
loss carryforwards, and (iv) disallowed amounts of business asset tax, commonly
referred to as BAT, creditable against the controlling entity's income tax
liability on the grounds that the creditable amount should be in proportion to
the equity interest that the controlling entity has in its relevant controlled
entities. Cemex Parent has filed an appeal for each of these tax claims before
the Mexican federal tax court, and the appeals are pending resolution.
As of December 31, 2004, the Philippine Bureau of Internal Revenue, or
BIR, assessed APO and Solid, Cemex Parent's operating subsidiaries in
Philippines, for deficiencies in the amount of income tax paid in prior tax
years amounting to a total of approximately PhP3,069.1 million (approximately
U.S.$54.8 million as of December 31, 2004, based on an exchange rate of
PhP56.702 to U.S.$1.00, which was the Philippine Peso/Dollar exchange rate on
December 31, 2004 as published by the Bangko Sentral ng Pilipinas, the central
bank of the Republic of the Philippines). The tax assessments result primarily
from: (i) the disallowance of APO's income tax holiday related income from 1998
to 2001; and (ii) deficiencies in national taxes paid by APO for the 1999 tax
year and by Solid for the 2000 tax year. In the first case, Cemex Parent has
contested the BIR's assessment with the Court of Tax Appeal, or CTA. In the
second case, both APO and Solid continue to submit relevant evidence to the BIR
to contest these assessments and intend to contest these assessments with the
CTA in case the BIR issues a final collection letter. In addition, Solid's 1998
tax year and APO's 1997 and 1998 tax years are under preliminary review by the
BIR for deficiency in the payment of taxes. As of the date of this annual
report, the finalization of these assessments was held in abeyance by the BIR as
APO and Solid continue to present evidence to dispute its findings. Cemex Parent
believes that these assessments will not have a material adverse effect on it.
However, an adverse resolution of these assessments could have a material
adverse effect on the results of its operations in the Philippines.
Other Legal Proceedings
In May 1999, several companies filed a civil liability suit in the
civil court of the circuit of Ibague, Colombia, against two of Cemex Parent's
Colombian subsidiaries, alleging that these subsidiaries were responsible for
deterioration of the rice production capacity of the land of the plaintiffs
caused by pollution from Cemex Parent's cement plants located in Ibague,
Colombia. On January 13, 2004, CEMEX Colombia was notified of the judgment the
court entered against CEMEX Colombia which awarded damages to the plaintiffs in
the amount of CoP21,114 million (U.S.$9.09 million as of February 28, 2005,
based on an exchange rate of CoP2,323.77 to U.S.$1.00, which was the Colombian
Peso/Dollar exchange rate on February 28, 2005 as published by the Banco de la
Republica de Colombia, the central bank of Colombia). On January 15, 2004 CEMEX
Colombia, appealed the judgment. The appeal was admitted and the case was sent
to the Tribunal Superior de Ibague, where CEMEX Colombia filed, on March 23,
2004, a statement of the arguments supporting its appeal. The case is currently
under review by the appellate court. Cemex Parent expects this proceeding to
continue for several years before final resolution.
In March 2001, 42 transporters filed a civil liability suit in the
civil court of Ibague, Colombia, against three of Cemex Parent's Colombian
subsidiaries. The plaintiffs content that these subsidiaries are responsible for
alleged damages caused by breach of raw material transportation contracts. The
plaintiffs asked for relief in the amount of CoP127,242 million (U.S.$54.76
million as of February 28, 2005). This proceeding has reached the evidentiary
stage. Typically, proceedings of this nature continue for several years before
final resolution.
As of December 31, 2004, CEMEX, Inc. had accrued liabilities
specifically relating to environmental matters in the aggregate amount of
U.S.$28.3 million. The environmental matters relate to (i) the disposal of
various materials in accordance with past industry practice, which might be
categorized as hazardous substances or wastes, and (ii) the cleanup of sites
used or operated by CEMEX, Inc., including discontinued operations, in regard to
the disposal of hazardous substances or wastes, either individually or jointly
with other parties. Most of the proceedings are in the preliminary stage, and a
final resolution might take several years. For purposes of recording the
provision, CEMEX, Inc. considers that it is probable that a liability has been
incurred and the amount of the liability is reasonably estimable, whether or not
claims have been asserted, and without giving effect to any possible future
recoveries. Based on information developed to date, CEMEX, Inc. does not believe
it will be required to spend significant sums on these matters in excess of the
amounts previously recorded. Until all environmental studies, investigations,
remediation work, and negotiations with or litigation against potential sources
of recovery have been completed, the ultimate cost that might be incurred to
resolve these environmental issues cannot be assured.
In March 2003, a lawsuit was filed in the Indonesian province of West
Sumatra in the Padang District Court against (i) Gresik, an Indonesian cement
producer in which Cemex Parent indirectly owns a 25.5% interest through CAH and
the Republic of Indonesia owns a 51% interest, (ii) Semen Padang, a 99.9%-owned
subsidiary of Gresik that owns and operates Gresik's Padang cement plant, and
(iii) several Indonesian government agencies. The lawsuit, which was filed by a
foundation purporting to act in the interest of the people of West Sumatra,
challenged the validity of the sale of Semen Padang by the Indonesian government
to Gresik in 1995 on the grounds that the Indonesian government did not obtain
the necessary approvals for such sale. On May 9, 2003, the Padang District Court
issued an interim decision suspending Gresik's rights as a shareholder in Semen
Padang on the grounds that ownership of Semen Padang was an issue in dispute. On
March 31, 2004, the Padang District Court announced its final decision in favor
of the foundation. On April 12, 2004, Gresik filed an appeal of this decision
with the Padang District Court, which will in turn forward the appeal to the
High Court of the West Sumatra province.
In addition to the case outlined in the preceding paragraph, there are
two other formal legal proceedings relating to the change of management at PT
Semen Padang in May 2003. In one case, filed by the Employees' Cooperative of PT
Semen Padang, the District Court of Padang ruled that the replacement of
management at PT Semen Padang was legally valid. An appeal of that decision by
the former management is currently pending before the High Court for West
Sumatra. In the other proceeding, certain members of the former management of PT
Semen Padang have filed a request for consideration with the Supreme Court in
regard to its decision in March 2003 to permit the general meeting of
shareholders of PT Semen Padang which led to the replacement of the former
management. This request is still pending.
After the failure of several attempts to reach a negotiated or mediated
solution to these problems involving Gresik, on December 10, 2003, CAH filed a
request for arbitration against the Republic of Indonesia and the Indonesian
government before the International Centre for Settlement of Investment
Disputes, or ICSID, based in Washington D.C. CAH is seeking, among other things,
rescission of the purchase agreement entered into with the Republic of Indonesia
in 1998, plus repayment of all costs and expenses, and compensatory damages.
ICSID has accepted and registered CAH's request for arbitration and issued a
formal notice of registration on January 27, 2004. On May 10, 2004, an Arbitral
Tribunal was established to hear the dispute. The Indonesian government has
objected to the Tribunal's jurisdiction over the claims asserted in CAH's
request for arbitration, and a hearing to resolve these jurisdictional
objections is expected to take place during 2005. Cemex Parent cannot predict
what effect, if any, this action will have on its investment in Gresik, how the
Tribunal will rule on the Indonesian government's jurisdictional objections or
the merits of the dispute, or the time-frame in which the Tribunal will rule.
During 2004, four lawsuits filed in protection of the public interest,
which include a subsidiary of CEMEX Colombia as a codefendant, were filed; the
first was filed on April 14 and the last was filed on December 16. The
plaintiffs argue that the use of a base material sold by the ready-mix industry
resulted in premature distress of the roads built for the mass public
transportation system of Bogota. The lawsuits allege that the base material
supplied by CEMEX Colombia and the other suppliers failed to meet technical
standards offered by the producers (quality deficiencies) and/or that they
provided insufficient or inaccurate information in connection with the product.
The four lawsuits seek the repair of the road in a manner which guarantees its
service during the 20-year period for which it was originally designed. However,
the lawsuits do not estimate the alleged damages, in this case, cost of repairs.
CEMEX Colombia has vigorously defended itself and will continue to do so. One of
the lawsuits was dismissed based on arguments presented to the court by CEMEX
Colombia; each of the others is in the initial stage of proceedings. CEMEX
Colombia has timely contested each of the lawsuits of which have been notified.
At this early stage it is not possible to estimate the potential damages or the
portion thereof which could be borne by CEMEX Colombia. Typically, proceedings
of this nature continue for several years before final resolution.
An administrative case is pending with the Philippine Department of
Trade and Industry ("DTI") against Solid Cement Corporation ("Solid") for
alleged violation of consumer product and quality safety standards. In August
12, 2004, and prior to the trial of the main case, the Philippine Department of
Trade and Industry ("DTI") issued a Preliminary Order (hereinafter referred to
as the "CDO") enjoining Solid from selling, distributing, delivering and
disposing of Island Cement or any brand manufactured by the Solid Cement plant
in Antipolo, Rizal, in bulk and in bags, to customers, dealers, and
distributors, including but not limited to, batching plants and hardware
outlets/stores. It must be emphasized that said CDO is preliminary in nature and
was issued by the DTI without a finding of any violation on the part of Solid.
Solid has contested the propriety of the issuance of the CDO. Subsequently, the
DTI ordered the conduct of a factory/product audit of Solid's plant in Antipolo,
Rizal. Several samples of Island Cement were taken by the DTI Audit Group and
were sent to a third party laboratory for testing. Soon after the complete
results of the tests came out which confirmed the fact that Island Cement indeed
complies with the standards set by the DTI, the DTI lifted the CDO. The main
case is still pending trial with the Office of Legal Affairs of the DTI, with
the prosecution presenting its evidence-in-chief. Notably, despite the
allegations hurled against Solid regarding the quality of its Island Cement, no
judicial action has yet been filed against Solid to date.
In the ordinary course of their business, Cemex Parent and its
Subsidiaries are party to various legal proceedings. Other than as disclosed
herein, Cemex Parent and its Subsidiaries are not currently involved in any
litigation or arbitration proceedings, including any such proceedings which are
pending, which they believe will have, or have had, a material adverse effect on
them, nor, so far as they are aware, are any proceedings of that kind
threatened.
SCHEDULE 12
MATERIAL SUBSIDIARIES
NEW SUNWARD HOLDING B.V.
MATERIAL SUBSIDIARIES
As of March 31, 2005
Cemex Espana, S.A.
Cemex Caracas Investments B.V.
Cemex Caracas II Investments B.V.
Cemex Venezuela, S.A.C.A.
Cemex American Holdings B.V.
Cemex Holdings Inc.
Cemex Corp.
Cemex, Inc.
Cemex Cement, Inc.
Sunbelt Cement Holdings Inc.
Cemex Concrete Holdings LLC
Cemex Construction Materials, L.P.
Sunbelt Investments, Inc.
SCHEDULE 13
PROMISSORY NOTES
Part I
FORM OF FACILITY A NOTE
PROMISSORY NOTE
[US$/(pound)/EUR/JPY]
For value received, the undersigned, NEW SUNWARD HOLDING B.V. (the "Borrower"),
by this Promissory Note unconditionally promises to pay to the order of
________________, the principal sum of [US$]/[euro]/[insert currency]*
__________________ (__________________________, [currency of the United States
of America,]/[currency of a member state of the European Union adopted in
accordance with the legislation relating to the Economic and Monetary
Union]/[other - please describe]* ___/100) on _____________ _____, 20__, (the
"Termination Date"), provided that if such day is not a Business Day, the
Termination Date shall be the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case the
Termination Date shall be the immediately preceding Business Day.
The Borrower further promises to pay interest on the principal amount
outstanding hereunder for each day during each Interest Period (as hereinafter
defined) at a rate per annum equal to the Screen Rate (as hereinafter defined)
for such Interest Period plus [o] [o per cent.)]. Interest shall be payable on
the Termination Date.
The Borrower also promises to pay, to the fullest extent permitted by applicable
law, default interest on any amount payable hereunder that is not paid when due,
payable on demand, at a rate per annum equal to the Screen Rate then in effect
plus [o]% (o per cent.) plus o% (o per cent.).
All computations of interest hereunder shall be made on the basis of a year of
360 days for the actual number of days elapsed in the period for which any such
interest is payable (including the first day but excluding the last day).
All payments to be made on or in respect of this Promissory Note shall be made
not later than 10:00 a.m., London time, to the account number __________, ABA
number _____________, Ref.:_______________ in __________________, maintained by
the Agent (as hereinafter defined), in [Dollars]/[euro]/[insert currency]* and
in immediately available funds.
- ---------------------------
* Please delete as appropriate
All payments hereunder shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority (as
hereinafter defined) ("Taxes"). If any Taxes are required to be deducted or
withheld from any amounts payable hereunder, the amounts so payable to the
holder hereof shall be increased to the extent necessary so that the holder
hereof receives all the amount it would have received had no such deduction or
withholding been made.
The undersigned agree to reimburse upon demand, in like manner and funds, all
losses, costs and reasonable expenses of the holder hereof, if any, incurred in
connection with the enforcement of this Promissory Note (including, without
limitation, all reasonable legal costs and expenses).
For purposes of this Note, the following terms shall have the following
meanings:
"Agent" means Citibank, N.A.
"Business Day" means a day (other than a Saturday or Sunday) on which banks are
open for general business in Amsterdam and New York, 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) London and 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.
"Governmental Authority" means any branch of power or government or any state,
department or other political subdivision thereof, or any governmental body,
agency, authority (including any central bank or taxing or environmental
authority), any entity or instrumentality (including any court or tribunal)
exercising executive, legislative, judicial, regulatory, administrative or
investigative functions of or pertaining to government.
"Interest Payment Date" means the last day of each Interest Period.
"Interest Period" shall mean, the period commencing on the execution date of
this Promissory Note and ending [one] [two] [three] [six] months thereafter and
thereafter, each period commencing on the last day of the immediately preceding
Interest Period and ending [one] [two] [three] [six] months thereafter; provided
that (i) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such extension would carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the immediately
preceding Business Day; (ii) no Interest Period shall extend beyond the
Termination Date; and (iii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month.
"Reference Banks" means the principal London offices of Citibank, N.A., BNP
Paribas and Banco Bilbao Vizcaya Argentaria, S.A..
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers' Association Interest
Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum determined by the
Banking Federation of the European Union for the relevant period,
displayed on the appropriate page of the Reuters screen. If the agreed page is
replaced or service ceases to be available, the Agent may specify another page
or service displaying the appropriate rate after consultation with the Borrower
and the Lenders.
["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.]**
This Promissory Note shall in all respects be governed by, and construed in
accordance with, the laws of England.
Any legal action or proceeding arising out of or relating to this Promissory
Note may be brought, in the competent courts of England. The undersigned waive
the jurisdiction of any other courts that may correspond for any other reason.
The undersigned hereby waive diligence, presentment, protest or notice of total
or partial non- payment or dishonour with respect to this Promissory Note.
This Promissory Note consists of ____ pages.
__________ [PLACE OF EXECUTION] ___________________ ______, 2005.
NEW SUNWARD HOLDING B.V.
---------------------------------
By:
----------------------
Title: Attorney-in-Fact
GUARANTORS
CEMEX, S.A. DE C.V.
----------------------------------------
By:
----------------------
Title: Attorney-in-Fact
CEMEX MEXICO, S.A. DE C.V.
----------------------------------------
By:
----------------------
Title: Attorney-in-Fact
EMPRESAS TOLTECA DE MEXICO, S.A. DE C.V.
----------------------------------------
By:
----------------------
Title: Attorney-in-Fact
- --------------------------
** Please delete if the Promissory note is not in euro.
Part II
FORM OF FACILITY B NOTE
PROMISSORY NOTE
[US$/EUR/(pound)/JPY]
For value received, the undersigned, NEW SUNWARD HOLDING B.V. (the "Borrower"),
by this Promissory Note unconditionally promises to pay to the order of
________________, the principal sum of [US$]/[euro]/[insert currency]*
__________________ (__________________________, [currency of the United States
of America,]/[currency of a member state of the European Union adopted in
accordance with the legislation relating to the Economic and Monetary
Union]/[other - please describe]*___/100) on _____________ _____, 20__, (the
"Termination Date"), provided that if such day is not a Business Day, the
Termination Date shall be the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case the
Termination Date shall be the immediately preceding Business Day.
The Lender is authorized to record the date, type, amount and currency of each
Loan made by the Lender pursuant to the US$700,000,000 Facility Agreement dated
[o] June 2005, the date and amount of each repayment of principal hereof, and
the date and currency of each interest rate conversion and each continuation
pursuant to the Facility Agreement and the principal amount subject thereto, the
interest rate and interest period with respect thereto on the schedule annexed
hereto and made a part hereof or on any other record customarily maintained by
the Lender with respect to this Note and any such recordation shall constitute
prima facie evidence of the accuracy of the information so recorded; provided
however that the failure of the Lender to make such recordation (or any error in
such recordation) shall not affect the obligations of the Borrower hereunder or
under the Facility Agreement.
The Borrower further promises to pay interest on the principal amount
outstanding hereunder for each day during each Interest Period (as hereinafter
defined) at a rate per annum equal to the Screen Rate (as hereinafter defined)
for such Interest Period plus [o%] [(o per cent.)]. Interest shall be payable on
each Interest Payment Date (as hereinafter defined).
The Borrower also promises to pay, to the fullest extent permitted by applicable
law, default interest on any amount payable hereunder that is not paid when due,
payable on demand, at a rate per annum equal to the Screen Rate then in effect
plus [o]% [(o per cent.)] plus 2.00% (o per cent.).
All payments to be made on or in respect of this Promissory Note shall be made
not later than 10:00 a.m., London time, to the account number __________, ABA
number _____________, Ref.:_______________ in __________________, maintained by
the Agent (as hereinafter defined), in [Dollars]/[euro]/[insert currency]* and
in immediately available funds.
- ---------------------------
* Please delete as appropriate
* Please delete as appropriate.
All payments hereunder shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority (as
hereinafter defined) ("Taxes"). If any Taxes are required to be deducted or
withheld from any amounts payable hereunder, the amounts so payable to the
holder hereof shall be increased to the extent necessary so that the holder
hereof receives all the amount it would have received had no such deduction or
withholding been made.
The undersigned agree to reimburse upon demand, in like manner and funds, all
losses, costs and reasonable expenses of the holder hereof, if any, incurred in
connection with the enforcement of this Promissory Note (including, without
limitation, all reasonable legal costs and expenses).
For purposes of this Note, the following terms shall have the following
meanings:
"Agent" means Citibank, N.A.
"Business Day" means a day (other than a Saturday or Sunday) on which banks are
open for general business in Amsterdam and New York, 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) London and 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.
"Governmental Authority" means any branch of power or government or any state,
department or other political subdivision thereof, or any governmental body,
agency, authority (including any central bank or taxing or environmental
authority), any entity or instrumentality (including any court or tribunal)
exercising executive, legislative, judicial, regulatory, administrative or
investigative functions of or pertaining to government.
"Interest Payment Date" means the last day of each Interest Period.
"Interest Period" shall mean, the period commencing on the execution date of
this Promissory Note and ending [one] [two] [three] [six] months thereafter and
thereafter, each period commencing on the last day of the immediately preceding
Interest Period and ending [one] [two] [three] [six] months thereafter; provided
that (i) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such extension would carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the immediately
preceding Business Day; (ii) no Interest Period shall extend beyond the
Termination Date; and (iii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month.
"Reference Banks" means the principal London offices of Citibank, N.A., BNP
Paribas and Banco Bilbao Vizcaya Argentaria, S.A..
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers' Association Interest
Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum determined by the
Banking Federation of the European Union for the relevant period,
displayed on the appropriate page of the Reuters screen. If the agreed page is
replaced or service ceases to be available, the Agent may specify another page
or service displaying the appropriate rate after consultation with the Borrower
and the Lenders.
["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.]**
This Promissory Note shall in all respects be governed by, and construed in
accordance with, the laws of England.
Any legal action or proceeding arising out of or relating to this Promissory
Note may be brought, in the competent courts of England. The undersigned waive
the jurisdiction of any other courts that may correspond for any other reason.
The undersigned hereby waive diligence, presentment, protest or notice of total
or partial non-payment or dishonour with respect to this Promissory Note.
This Promissory Note consists of ____ pages.
__________ [PLACE OF EXECUTION] ___________________ ______, 2005.
NEW SUNWARD HOLDING B.V.
---------------------------------
By:
----------------------
Title: Attorney-in-Fact
GUARANTORS
CEMEX, S.A. DE C.V.
----------------------------------------
By:
----------------------
Title: Attorney-in-Fact
CEMEX MEXICO, S.A. DE C.V.
----------------------------------------
By:
----------------------
Title: Attorney-in-Fact
EMPRESAS TOLTECA DE MEXICO, S.A. DE C.V.
----------------------------------------
By:
----------------------
Title: Attorney-in-Fact
- ---------------------------
** Please delete if the Promissory note is not in euro.
SCHEDULE TO NOTE
LOANS AND PAYMENTS OF PRINCIPAL
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
Date Amount of Currency of Type of Interest Interest Termination Principal Principal Notation
Loan Loan Loan(2) Rate Period Date Paid or Balance Made By
Converted
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
- ------------ ------------ ------------ ----------- ----------- ----------- ------------- -------------- ----------- ------------
- ---------------------------
(2) The type of Loan may be represented by "L" for LIBOR Loans, "E" for
Euribor Loans.
SIGNATURES
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
NEW SUNWARD HOLDING B.V.
Address: Amsteldijk 166
1079LH Amsterdam
The Netherlands
Fax: (31) 20 644-4095
Attention: Managing Director(s)
as Borrower
By: /s/ Hector Vela
Name: Hector Vela
Title: Attorney-in-fact
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
CEMEX, S.A. DE C.V.
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
as Original Guarantor
By: /s/ Hector Vela
Name: Hector Vela
Title: Attorney-in-fact
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
CEMEX MEXICO, S.A. DE C.V.
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
as Original Guarantor
By: /s/ Hector Vela
Name: Hector Vela
Title: Attorney-in-fact
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
EMPRESAS TOLTECA DE MEXICO, S.A. DE C.V.
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
as Original Guarantor
By: /s/ Hector Vela
Name: Hector Vela
Title: Attorney-in-fact
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
CITIBANK, N.A.
Address: 399 Park Avenue
New York
NY 10043
Fax:
Attention: Medium Term Finance / Agency
as Agent
By: /s/ Mario Espinosa
Name: Mario Espinosa
Title: Vice President
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
CITIGROUP GLOBAL MARKETS, INC.
Address: 390 Greenwich Street, First Floor
New York
NY 10013
Fax: +(212) 723-8543/8541
as Arranger
By: /s/ Mario Espinosa
Name: Mario Espinosa
Title: Managing Director
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
Address: Alcala 16, 4a p
28014 Madrid
Fax: + (3491) 537-0624
as Arranger
By: /s/ Jose Maria Sagardoy
Name: Jose Maria Sagardoy
Title: Director
By: /s/ Luis Martinez Nussio
Name: Luis Martinez Nussio
Title: Director de Relacion
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
BNP PARIBAS
Address: 10 Harewood Avenue
London NW1 6AA
Fax: + 44 (20) 7595-6597
as Arranger
By: /s/ Illegible
Name: Illegible
Title: Illegible
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
BANCO BILBOA VIZCAYA ARGENTARIA, S.A.
as Original Lender
By: /s/ Jose Maria Sagardoy
Name: Jose Maria Sagardoy
Title: Director
By: /s/ Luis Martinez Nussio
Name: Luis Martinez Nussio
Title: Director de Relacion
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
BNP PARIBAS
as Original Lender
By: /s/ Illegible
Name: Illegible
Title: Illegible
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
CITIBANK, N.A. NASSAU BAHAMAS BRANCH
as Original Lender
By: /s/ Leslie Munroe
Name: Leslie Munroe
Title: Attorney-in-fact
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
CALYON SUCURSAL EN ESPANA
as Original Lender
By: /s/ Ramon Fernandez
Name: Ramon Fernandez
Title: Executive Director
By: /s/ Javier Alvarez-Rendueles
Name: Javier Alvarez-Rendueles
Title: Executive Director
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
ING BANK N.V.
as Original Lender
By: /s/ A.C. Zulia
Name: A.C. Zulia
Title: Senior Manager Transaction Processing
By: /s/ A.A. Felipa Ventura
Name: A.A. Felipa Ventura
Title: Manager Credit-Administration
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
JPMORGAN CHASE BANK
as Original Lender
By: /s/ Linda Meyer
Name: Linda Meyer
Title: Vice President
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
LLOYDS TSB BANK PLC
as Original Lender
By: /s/ Chris Spedding
Name: Chris Spedding
Title: Corporate Manger
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
MIZUHO CORPORATE BANK, LTD
as Original Lender
By: /s/ Tsukasa Takasawa
Name: Tsukasa Takasawa
Title: Senior Vice President
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
BANCO SANTANDER CENTRAL HISPANO S.A.
as Original Lender
By: /s/ Simon Ergas Testa
Name: Simon Ergas Testa
Title: Director
By: /s/ Jose Luis Munoz Cintron
Name: Jose Luis Munoz Cintron
Title: Vice President
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
THE ROYAL BANK OF SCOTLAND PLC
as Original Lender
By: /s/ Inaki Basterreche
Name: Inaki Basterreche
Title: Senior Director
By: /s/ Carmen Alto
Name: Carmen Alto
Title: Head of CIB Iberia
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
WACHOVIA BANK, NATIONAL ASSOCIATION
as Original Lender
By: /s/ Kathleen H. Reedy
Name: Kathleen H. Reedy
Title: Managing Director
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
THE BANK OF TOKYO-MITSUBISHI, LTD
as Original Lender
By: /s/ Pamela D. Price
Name: Pamela D. Price
Title: Vice President and Manager
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
FORTIS BANK S.A./N.V.
as Original Lender
By: /s/ Hans DE LANGHE
Name: Hans DE LANGHE
Title: Corporate Credit Support Manager
By: /s/ Herman Sonck
Name: Herman Sonck
Title: Senior Credit Manager
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
BANCO DE SABADELL, S.A.
as Original Lender
By: /s/ Jose Carlos Hernandez Bertomeu
Name: Jose Carlos Hernandez Bertomeu
Title: Director
By: /s/ Manuel Perez-Pedrero Diaz
Name: Manuel Perez-Pedrero Diaz
Title: Director
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
BANK OF AMERICA, N.A.
as Original Lender
By: /s/ John Donnelly
Name: John Donnelly
Title: Managing Director
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
as Original Lender
By: /s/ Paul Costello
Name: Paul Costello
Title: Deputy Manager
By: /s/ Maurice Healy
Name: Maurice Healy
Title: Senior Manager
THIS IS A SIGNATURE PAGE TO THE US$700,000,000 FACILITIES AGREEMENT, DATED AS OF
27 JUNE 2005.
BANCO ITAU EUROPA, S.A. SUCURSAL FINANCEIRA EXTERIOR
as Original Lender
By: /s/ Jose Francisco Claro
Name: Jose Francisco Claro
Title: Chief Operating Officer
By: /s/ Alejandra Vicoso
Name: Alejandra Vicoso
Title: Director