THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit 4.4.3
EXECUTION COPY
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to the Credit Agreement (as defined below), dated as of May 9, 2007 (this "Amendment No. 3"), is entered into by and among CEMEX, S.A.B. de C.V., a sociedad anonima bursátil de capital variable organized and existing pursuant to the laws of the United Mexican States (formerly known as "CEMEX, S.A. de C.V.") (the "Borrower"), CEMEX MÉXICO, S.A. de C.V., a sociedad anonima de capital variable organized and existing pursuant to the laws of the United Mexican States, EMPRESAS TOLTECA DE MÉXICO, S.A. de C.V., a sociedad anonima de capital variable organized and existing pursuant to the laws of the United Mexican States (each a "Guarantor" and together, the "Guarantors"), BARCLAYS BANK PLC, NEW YORK BRANCH ("Barclays"), as an Issuing Bank and Documentation Agent, ING BANK N.V., as an Issuing Bank (together with Barclays in its capacity as an Issuing Bank, the "Issuing Banks"), the several Lenders party hereto, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK PLC, as a Joint Bookrunner, CITIGROUP GLOBAL MARKETS INC., as a Joint Bookrunner and Syndication Agent and ING CAPITAL LLC, as a Joint Bookrunner and Administrative Agent (the Syndication Agent, the Documentation Agent and the Administrative Agent, together the "Agents").
RECITALS
A. The Borrower, the Guarantors, Barclays, as an Issuing Bank and Documentation Agent, ING Bank N.V., as an Issuing Bank, the several Lenders party thereto, Barclays Capital, the Investment Banking Division of Barclays Bank PLC, as a Joint Bookrunner, Citigroup Global Markets Inc., as a Joint Bookrunner and Syndication Agent, and ING Capital LLC, as Administrative Agent, are parties to that certain amended and restated credit facility, dated as of June 6, 2005, as amended by Amendment No. 1 to the Credit Agreement, dated as of June 21, 2006 (the "Amendment No. 1") and the Amendment and Waiver Agreement, dated as of December 1, 2006 (the "Amendment No. 2")(as now or hereafter amended, restated or otherwise modified, the "Credit Agreement").
B. The Borrower has requested that the Agents and the Lenders consent to the following amendment to the Credit Agreement.
C. This Amendment No. 3 shall constitute a Transaction Document and these Recitals shall be construed as part of this Amendment No. 3.
NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and of the Loans and other extensions of credit heretofore, now or hereafter made to, or for the benefit of, the Borrower by the Lenders, the Borrower, the Agents, and the Lenders hereby agree as follows:
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1. Definitions. Except to the extent otherwise specified herein, capitalized terms used in this Amendment No. 3 shall have the same meanings ascribed to them in the Credit Agreement.
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2. |
Amendments. Subject to Section 5, the Credit Agreement is hereby amended as follows: |
2.1 The definition for “Termination Date” in Section 1.01 (“Certain Definitions”) shall be deleted and replaced in its entirety with the following language:
““Termination Date” means the earlier of (a) the date five years following the Effective Date, or if extended with the written consent of a Participating Lender pursuant to Section 4.02, such later date as it relates to such Participating Lender or (b) if no Loans or Standby L/Cs are outstanding, the date the Commitments are terminated in full in accordance with this Agreement.”
2.2 The following definition shall be added to Section 1.01 (“Certain Definitions”):
““Tender Offer” means any offer made by the Borrower or any of its Subsidiaries to acquire at least 50.1% of the issued and outstanding shares of a target company or a controlling interest in such target company.”
2.3 Section 6.22 (“Margin Regulations”) shall be deleted and replaced in its entirety with the following language:
6.22 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, except in compliance with Regulation U. If requested by any Participating Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Participating 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 except in compliance with Regulation U or any “margin security” within the meaning of Regulation T except in compliance with Regulation T. Neither the execution and delivery hereof by the Borrower, nor the performance by it of any of the transactions contemplated by this Agreement (including, without limitation, 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.
2.4 Section 8.09 (“Use of Proceeds”) shall be deleted and replaced in its entirety with the following language:
“(a) The Borrower will use the proceeds of all Loans made hereunder for general corporate purposes, including but not limited to the repayment of indebtedness, and to finance acquisitions;
(b) The Borrower will ensure that at no time shall the Aggregate Exposure of the Participating Lenders exceed the Aggregate Commitment Amount then in effect.”
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2.5 A new clause (l) shall be added to Section 9.02 (“Liens”) of the Credit Agreement to read as follows:
“(l) any Liens on “margin stock” purchased with the proceeds of the Loans within the meaning of Regulation U, if and to the extent the value of all “margin stock” of the Borrower and its Subsidiaries exceeds 25% of the value of the total assets of the Borrower and its Subsidiaries;”
2.6 Section 9.04 (“Sales of Assets, Etc.”) shall be deleted and replaced in its entirety with the following language:
“9.04 Sales of Assets, Etc. The Borrower will not, and will not permit any of its Material Subsidiaries to, 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 the Borrower or any Subsidiary sold in the ordinary course of business, (b) assets not used, usable or held for use in connection with cement operations and related operations and (c) any “margin stock” within the meaning of Regulation U acquired by the Borrower with the proceeds of the Loans through the Tender Offer, unless the proceeds of the sale of such assets are retained by the Borrower 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 the Borrower or any of its Subsidiaries, whether secured or unsecured; or (iii) investments in companies engaged in the cement industry or related industries.”
3. Fee. The Borrower hereby agrees to pay to the Administrative Agent for the benefit of the Lenders that (i) consent in writing to all the provisions (Sections 2.1–2.5) of this Amendment No. 3 (the "Written Consent") on or prior to May 9, 2007 (the "Consent Date") and (ii) provide to the Administrative Agent (with a copy to the Borrower) its Written Consent on or prior to the Consent Date (the "Consenting Lenders"), a fee of 0.025% (the "Consent Fee") of the outstanding commitment amount of each Consenting Lender under the Credit Agreement; provided that, the Consent Fee shall only be payable to a Consenting Lender if (i) its Written Consent is delivered to the Administrative Agent on or prior to the Consent Date and (ii) the Required Lenders have given their consents to Sections 2.2–2.5 of this Amendment. The Consent Fee shall be payable within two Business Days of the execution by the Required Lenders of this Agreement, provided that, if such date is not a Business Day, then the Consent Fee shall be payable on the next succeeding Business Day.
4. Representations and Warranties. The Borrower and the Credit Parties hereby represent and warrant to the Administrative Agent and the Lenders that:
4.1 The representations and warranties contained in the Credit Agreement are true and correct as of the date of this Amendment No. 3.
4.2 The execution, delivery and performance by the Borrower and the other Credit Parties of this Amendment No. 3 has been duly authorized by all necessary corporate action, and this Amendment No. 3 constitutes the legal, valid and binding obligation of the
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Borrower and the Credit Parties enforceable against the Borrower and the Credit Parties in accordance with its terms, except as the enforcement hereof may be subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally or to general principles of equity.
4.3 The execution, delivery and performance of this Amendment No. 3 does not, and will not, contravene or conflict with any provision of (i) law, (ii) any judgment, decree or order, or (iii) the certificate or articles of incorporation or by-laws or other constituent documents of the Borrower and the Credit Parties, and does not, and will not, contravene or conflict with, or cause any Lien to arise under, any provision of any indenture, agreement, mortgage, lease, instrument or other document binding upon or otherwise affecting the Borrower and the Credit Parties or any property of the Borrower and the Credit Parties.
4.4 No Default or Event of Default exists under the Credit Agreement or any other Transaction Document or will exist after or be triggered by the execution, delivery and performance of this Amendment No. 3. In addition, the Borrower and the Credit Parties hereby represent, warrant and reaffirm that the Credit Agreement and each of the other Transaction Documents remain in full force and effect.
5. Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth in Section 2 hereof are in each instance subject to the satisfaction of each of the following conditions precedent:
5.1 Amendment No. 3. This Amendment No. 3 shall have been duly executed and delivered by each of the Borrower, the Administrative Agent and the Lenders.
5.2 No Default. No Default or Event of Default shall have occurred and be continuing or would result from the effectiveness of this Amendment No. 3.
5.3 Opinions. The Administrative Agent and the Lenders shall have received opinions from the Borrower's General Counsel, with respect to this Amendment No. 3 in form and substance acceptable to the Administrative Agent.
5.4 Miscellaneous. The Administrative Agent and the Lenders shall have received such other agreements, instruments and documents as the Administrative Agent or the Lenders may reasonably request.
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6. |
Reference to and Effect Upon the Credit Agreement and other Transaction Documents. |
6.1 Full Force and Effect. Except as specifically provided herein, the Credit Agreement, the Notes and each other Transaction Document shall remain in full force and effect and each is hereby ratified and confirmed by the Borrower.
6.2 No Waiver. The execution, delivery and effect of this Amendment No. 3 shall be limited precisely as written and shall not be deemed to (i) be a consent to any waiver of any term or condition, or to any amendment or modification of any term or condition (except as specifically provided herein) of the Credit Agreement, the Notes or any other Transaction Document or (ii) prejudice any right, power or remedy which the Administrative Agent or any
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Lender now has or may have in the future under or in connection with the Credit Agreement or any other Transaction Document.
6.3 Certain Terms. Each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or any other word or words of similar import shall mean and be a reference to the Credit Agreement as amended hereby, and each reference in any other Transaction Document to the Credit Agreement or any word or words of similar import shall be and mean a reference to the Credit Agreement as amended hereby.
7. Counterparts. This Amendment No. 3 may be executed in any number of counterparts, each of which when so executed shall be deemed an original but all such counterparts shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment No. 3 by telecopier shall be as effective as delivery of a manually executed counterpart signature page to this Amendment No. 3.
8. Costs and Expenses. As provided in the Credit Agreement, the Borrower shall pay the reasonable fees, costs and expenses incurred by Agent in connection with the preparation, execution and delivery of this Amendment No. 3 (including, without limitation, attorneys' fees).
9. GOVERNING LAW. THIS AMENDMENT NO. 3 SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
10. Headings. Section headings in this Amendment No. 3 are included herein for convenience of reference only and shall not constitute a part of this Amendment No. 3 for any other purpose.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment No. 3 has been duly executed as of the date first written above.
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CEMEX, S.A.B. de C.V., | ||
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By: |
/s/ Xxxxxxx Xxxxxx | |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Attorney-in-Fact |
[Amendment No. 3 to $700 mil Facility]
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CEMEX MÉXICO, S.A. DE C.V., | ||
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By: |
/s/ Xxxxxxx Xxxxxx | |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Attorney-in-Fact |
[Amendment No. 3 to $700 mil Facility]
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EMPRESAS TOLTECA DE MÉXICO, S.A. DE C.V., | ||
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By: |
/s/ Xxxxxxx Xxxxxx | |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Attorney-in-Fact |
[Amendment No. 3 to $700 mil Facility]
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BARCLAYS BANK PLC, NEW YORK BRANCH, | ||
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By: |
/s/ Xxxxxxxx Xxxx | |
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Name: |
Xxxxxxxx Xxxx |
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Title: |
Director |
[Amendment No. 3 to $700 mil Facility]
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ING BANK N.V. (acting through its Curacao Branch), as Issuing Bank and a Lender | ||
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By: |
/s/ Xxxx van Steenderen | |
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Name: |
Xxxx van Steenderen |
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Title: |
General Manager |
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By: |
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Name: |
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Title: |
Director, Head Human Resources |
[Amendment No. 3 to $700 mil Facility]
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BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK PLC, | ||
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By: |
/s/ Xxxxxxxx Xxxx | |
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Name: |
Xxxxxxxx Xxxx |
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Title: |
Director |
[Amendment No. 3 to $700 mil Facility]
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ING CAPITAL LLC, | ||
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By: |
/s/ Xxxxxxx X. Xxxx | |
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Name: |
Xxxxxxx X. Xxxx |
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Title: |
Director |
[Amendment No. 3 to $700 mil Facility]
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CITIGROUP GLOBAL MARKETS INC., | ||
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By: |
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Name: |
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Title: |
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[Amendment No. 3 to $700 mil Facility]
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BANCO SANTANDER CENTRAL HISPANO SA NEW YORK BRANCH, | ||
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By: |
/s/ Xxxxx Xxxxx | |
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Name: |
Xxxxx Xxxxx |
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Title: |
Vice President |
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By: |
/s/ Xxxxx X. Xxxxx | |
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Name: |
Xxxxx X. Xxxxx |
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Title: |
Vice President |
[Amendment No. 3 to $700 mil Facility]
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THE BANK OF NOVA SCOTIA, | ||
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By: |
/s/ Xxx Xxxxxx | |
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Name: |
Xxx Xxxxxx |
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Title: |
Managing Director |
[Amendment No. 3 to $700 mil Facility]
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD, | ||
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By: |
/s/ Xxxxxx X. Xxxxx | |
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Name: |
Xxxxxx X. Xxxxx |
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Title: |
Vice President & Manager |
[Amendment No. 3 to $700 mil Facility]
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BANCO BILBAO VIZCAYA ARGENTARIA S.A. New York BRANCH, | ||
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By: |
/s/ Xxxx Xxxxxxxx | |
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Name: |
Xxxx Xxxxxxxx |
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Title: |
Chief Operating Officer |
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By: |
/s/ Xxxxxxx Xxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Senior Vice President |
[Amendment No. 3 to $700 mil Facility]
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BNP PARIBAS PANAMA BRANCH, | ||
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By: |
/s/ Xxxx Xxxxxx-Xxxxxxxx | |
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Name: |
Xxxx Xxxxxx-Xxxxxxxx |
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Title: |
Executive Vice President |
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By: |
/s/ Nair Gonzalez | |
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Name: |
Nair Gonzalez |
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Title: |
Senior Vice President |
[Amendment No. 3 to $700 mil Facility]
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CALYON New York Branch, | ||
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By: |
/s/ Xxxxx Xxxxx | |
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Name: |
Xxxxx Xxxxx |
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Title: |
Managing Director |
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By: |
/s/ Xxxxx Xxxxx | |
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Name: |
Xxxxx Xxxxx |
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Title: |
Vice President |
[Amendment No. 3 to $700 mil Facility]
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MIZUHO CORPORATE BANK LTD, | ||
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By: |
/s/ Xxxxx Xxxxx | |
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Name: |
Xxxxx Xxxxx |
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Title: |
Deputy General Manager |
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[Amendment No. 3 to $700 mil Facility]
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WACHOVIA BANK NA, | ||
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By: |
/s/ Xxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxx X. Xxxxx |
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Title: |
Managing Director |
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[Amendment No. 3 to $700 mil Facility]
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BANK OF AMERICA, N.A., | ||
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By: |
/s/ Xxxxxx Xxxxxxx | |
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
VP Investment Bank |
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[Amendment No. 3 to $700 mil Facility]
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STANDARD CHARTERED BANK, | ||
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By: |
/s/ Xxxxx Xxxxxxxx Xxxxxx | |
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Name: |
Xxxxx Xxxxxxxx Xxxxxx |
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Title: |
Syndications, Capital Markets |
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By: |
/s/ Xxxxxxxxx X. Xxxxx | |
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Name: |
Xxxxxxxxx X. Xxxxx |
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Title: |
Credit Documentation Manager |
[Amendment No. 3 to $700 mil Facility]
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CITIBANK NA NASSAU, BAHAMAS BRANCH, | ||
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By: |
/s/ X. Xxxxxx | |
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Name: |
X. Xxxxxx |
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Title: |
Attorney-in-Fact |
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[Amendment No. 3 to $700 mil Facility]
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CITIBANK (BANAMEX USA), | ||
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By: |
/s/ Xxxx Xxxxx | |
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Name: |
Xxxx Xxxxx |
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Title: |
Senior Vice President |
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By: |
/s/ Xxxxxx Xxxxxxxxxxxxx | |
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Name: |
Xxxxxx Xxxxxxxxxxxxx |
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Title: |
Senior Vice President |
[Amendment No. 3 to $700 mil Facility]
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BAYERISCHE LANDESBANK, | ||
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By: |
/s/ Xxxxxxx xxx Xxxxxxx | |
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Name: |
Xxxxxxx xxx Xxxxxxx |
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Title: |
Senior Vice President |
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By: |
/s/ Xxxxxxx Xxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
First Vice President |
[Amendment No. 3 to $700 mil Facility]
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HSBC MEXICO S.A. INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO HSBC, | ||
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By: |
/s/ Xxxxxxx Xxxxx Xxxxxxxxx | |
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Name: |
Xxxxxxx Xxxxx Xxxxxxxxx |
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Title: |
Attorney-in-Fact |
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[Amendment No. 3 to $700 mil Facility]
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COMERICA BANK, | ||
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By: |
/s/ Xxxx X. Xxxxxx | |
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Name: |
Xxxx X. Xxxxxx |
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Title: |
Vice President |
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[Amendment No. 3 to $700 mil Facility]
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DEUTSCHE BANK AG NEW YORK BRANCH, | ||
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By: |
/s/ Xxxxxxx Xxxxx | |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Director |
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By: |
/s/ Xxxxx Xxxxx | |
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Name: |
Xxxxx Xxxxx |
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Title: |
Director |
[Amendment No. 3 to $700 mil Facility]
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DRESDNER BANK AG ACTING | ||
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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[Amendment No. 3 to $700 mil Facility]
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INTESA SANPAOLO S.P.A., | ||
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By: |
/s/ Xxxxxxx Xxxxx | |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President |
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By: |
/s/ D. Xxxx Xxxxxxxxxx | |
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Name: |
D. Xxxx Xxxxxxxxxx |
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Title: |
V.P. and General Counsel |
[Amendment No. 3 to $700 mil Facility]
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BANCA DI ROMA S.P.A. NEW YORK BRANCH | ||
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By: |
/s/ Xxxxx Xxxxxxx | |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Assistant Treasurer |
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By: |
/s/ Xxxxxxxxxx Xxxxx | |
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Name: |
Xxxxxxxxxx Xxxxx |
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Title: |
First Vice President |
[Amendment No. 3 to $700 mil Facility]
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JPMORGAN CHASE BANK NA, | ||
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By: |
/s/ Xxxxxxxxx Xxxxxx | |
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Name: |
Xxxxxxxxx Xxxxxx |
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Title: |
Executive Director |
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[Amendment No. 3 to $700 mil Facility]
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SOCIETE GENERALE, | ||
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By: |
/s/ Xxxxxx X. Xxxxxxxx | |
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Name: |
Xxxxxx X. Xxxxxxxx |
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Title: |
Vice President |
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[Amendment No. 3 to $700 mil Facility]
