AMENDMENT AND WAIVER AGREEMENT
Exhibit
(b)(1)(G)
EXECUTION
COPY
THIS
AMENDMENT AND WAIVER AGREEMENT (as amended, supplemented or otherwise modified
from time to time, this “Agreement”),
dated
as of December 1, 2006, is entered into between CEMEX, S.A.B. DE C.V., a
sociedad
anónima bursátil de capital variable
organized under the laws of the United Mexican States (“Mexico”)
(formerly CEMEX, S.A. de C.V.) (the “Borrower”),
Cemex
México, S.A. de C.V., a sociedad
anónima de capital variable
organized under the laws of Mexico and Empresas Tolteca de México, S.A. de C.V.,
a sociedad
anónima de capital variable
organized under the laws of Mexico (each a “Guarantor”
and
collectively the “Guarantors”)
and
ING CAPITAL LLC, as administrative agent for the Lenders (in such capacity,
the
“Administrative
Agent”)
acting
on the instructions of the Required Lenders for and on behalf of the Lenders
party to the Credit Agreement (as defined below).
W I T N E S S E T H
WHEREAS,
the Borrower, the Guarantors, the Lenders from time to time party thereto,
the
Administrative Agent for the Lenders, Barclays Bank PLC, New York branch, as
Issuing Bank and Documentation Agent, ING Bank N.V., as Issuing Bank, Barclays
Capital, the Investment Banking Division of Barclays Bank plc, as Joint
Bookrunner and Citigroup Global Markets Inc., as Joint Bookrunner and
Syndication Agent, entered into an amended and restated credit agreement, dated
as of June 6, 2005, to amend the credit agreement, dated as of June 23, 2004,
among the Borrower, the Guarantors, Barclays, as 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, as a Joint
Bookrunner and ING Capital LLC, as Joint Bookrunner and Administrative Agent
(as
amended, supplemented or otherwise modified prior to the date hereof, the
“Credit
Agreement”);
and
WHEREAS,
the parties hereto desire to amend the terms of the Credit Agreement pursuant
to
this Agreement;
and
WHEREAS,
the Administrative Agent on behalf of the Required Lenders is willing to consent
to certain amendments to the Credit Agreement and grant such requested waiver,
upon the terms and conditions set forth below;
NOW
THEREFORE, in consideration of the waiver and amendment herein obtained, and
in
consideration of the premises and other good and valuable consideration, the
parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Unless
otherwise defined herein or the context otherwise requires, terms used in this
Agreement, including its preamble and recitals, shall have the respective
meanings set forth in the Credit Agreement.
ARTICLE
II
EFFECTIVE
DATE
This
Agreement shall become effective upon the execution and delivery of this
Agreement by the Borrower and the Administrative Agent (acting on the
instructions of the Required Lenders) (the “Effective
Date”).
On
the
Effective Date, the Credit Agreement shall be amended as set forth in this
Agreement.
ARTICLE
III
WAIVER
OF
CERTAIN PROVISIONS OF THE CREDIT AGREEMENT
On
the
date on which the offer made by CEMEX Australia Pty Ltd., a proprietary limited
company organized under the laws of Victoria, Australia (“Cemex
Australia”)
(as
evidenced by the announcement made by the Borrower on October 27, 2006) to
acquire the issued and outstanding shares of the Xxxxxx Group Limited, a public
limited company organized under the laws of the New South Wales, Australia,
not
previously owned by CEMEX Australia (as such offer may be amended, supplemented,
revised, renewed, waived or otherwise modified from time to time) becomes,
or is
declared to be, unconditional in all respects (the “Waiver
Effective Date”),
the
Required Lenders agree to waive compliance by the Borrower of the Credit
Agreement to the extent set forth in this Article III.
Except
as expressly so waived, the Credit Agreement shall continue in full force and
effect in accordance with its terms.
SECTION
3.1 Waiver
of Section 9.01(a) (Financial Condition) of the Credit Agreement.
From
the Waiver Effective Date up to, and including, December 31, 2007, or such
other
later date as may be agreed between the parties to this Agreement (the
“Waiver
Termination Date”),
the
Required Lenders in accordance with Section
15.02
of the
Credit Agreement, hereby waive compliance by the Borrower with the financial
condition covenant set forth in Section
9.01(a)
of the
Credit Agreement.
SECTION
3.2 Waiver
of Compliance with Section 9.01(a) (Financial Condition) of the Credit
Agreement.
As a
result of the waiver provided in Section
3.1
hereof,
the Borrower shall at no time during the period commencing on the Waiver
Effective Date up to, and including the Waiver Termination Date (such period,
the “Waiver
Period”)
be
obliged to ensure that it complies with such financial condition covenant or
provide any compliance or other certificate in relation to such covenant and
no
consequences whatsoever shall flow under the Credit Agreement or any other
Transaction Document from the failure by the Borrower to comply with such
covenant during the Waiver Period.
SECTION
3.3 Extent
of Waiver of Section 9.01(a) (Financial Condition) of the Credit
Agreement.
The
waiver set forth in Section
3.1
hereof
shall not be deemed to constitute a waiver with respect to compliance with
any
other term, provision or condition of the Credit Agreement, any other
Transaction Document or any other instrument or agreement referred to therein
or
relating thereto or prejudice any right or remedy that the Administrative Agent
or any Lender may now have or may in the future arise under or in connection
with the Credit Agreement, any other Transaction Document or any other
instrument or agreement referred to therein or relating thereto.
2
SECTION
3.4 Compliance
with Section 9.01(a) (Financial Condition) of the Credit
Agreement.
In the
event that the Waiver Termination Date is December 31, 2007, and provided such
Waiver Termination Date is not extended pursuant to agreement between the
parties to this Agreement, the waiver shall cease to be effective commencing
on
January 1, 2008. After the Waiver Termination Date, the Borrower undertakes
to
comply with the financial condition covenant set forth in Section
9.01(a)
of the
Credit Agreement as amended pursuant to Article
IV
hereof.
ARTICLE
IV
AMENDMENT
On
the
Effective Date, the Administrative Agent, on behalf of the Required Lenders,
agrees to amend, without any further action, the provision of the Credit
Agreement referred to below and such provision is hereby modified and amended
in
accordance with this Article IV.
Except
as so modified and amended, the Credit Agreement shall continue in full force
and effect in accordance with its terms.
SECTION
4.1 Amendment
to Section 9.01 of the Credit Agreement.
Section
9.01
of the
Credit Agreement is amended by inserting the following paragraph (d)
at the
end of Section
9.01:
|
“(d)
|
For
the purposes of calculating the Consolidated Net Debt to EBITDA
Ratio
in
Section 9.01(a) above only, “Consolidated Net Debt” shall not include any
Debt which, notwithstanding falling within the definition of Debt,
is not
required to be recorded as a liability by the Borrower on its consolidated
balance sheet in accordance with generally accepted accounting principles
applicable to the Borrower which are in effect as at the time that
such
Debt is entered into, issued or
incurred.”
|
ARTICLE
V
FEE
SECTION
5.1 Fee.
The
Borrower hereby agrees to pay to the Administrative Agent for the benefit of
the
Lenders that (i) consent in writing to the provisions of this Agreement (the
“Written
Consent”)
on or
prior to November 28, 2006 (the “Consent
Date”),
(ii)
provide to the Administrative Agent (with a copy to the Borrower) its Written
Consent on or prior to the Consent Date, and (iii) instruct the Administrative
Agent to execute and deliver this Agreement in accordance with the terms hereof
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 if the Written Consent is delivered to
the
Administrative Agent on or prior to the Consent Date. The Consent Fee shall
be
payable within two Business Days of the execution by the Administrative Agent
(acting on the instructions of 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.
3
ARTICLE
VI
MISCELLANEOUS
PROVISIONS
SECTION
6.1 No
Other Agreements; References to the Credit Agreement.
Other
than as specifically provided herein, this Agreement shall not operate as a
waiver or amendment of any right, power or privilege of the Lenders under the
Credit Agreement or any other Transaction Document or of any other term or
condition of the Credit Agreement or any other Transaction Document nor shall
the entering into of this Agreement preclude the Lenders from refusing to enter
into any further waivers or amendments with respect to the Credit Agreement.
All
references to the Credit Agreement in any document, instrument, agreement,
or
writing shall from and after the Effective Date be deemed to refer to the Credit
Agreement, and, as used in the Credit Agreement, the terms “Agreement”,
“herein”, “hereafter”, “hereunder”, “hereto”, and words of similar import shall
mean, from and after the Effective Date, the Credit Agreement.
SECTION
6.2 Headings.
The
descriptive headings of the various sections or parts of this Agreement are
for
convenience only and shall not affect the meaning or construction of any of
the
provisions hereof.
SECTION
6.3 Execution
in Counterparts.
This
Agreement may be executed by the parties hereto in several counterparts, each
of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. Delivery of any executed counterpart
of
a signature page of this Agreement by facsimile or other electronic transmission
shall be as effective as delivery of a manually executed counterpart
hereof.
SECTION
6.4 Governing
Law; Entire Agreement.
THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS
OF
THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE. This Agreement
and the other Transaction Documents constitute the entire understanding among
the parties hereto with respect to the subject matter hereof and supersede
any
prior agreements, written or oral, with respect thereto.
4
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
as
of the day and year first above written.
|
CEMEX,
S.A.B.
DE C.V.
|
|
By:____________________________________
Title: Chief Financial
Officer
|
|
CEMEX
MÉXICO, S.A.
DE C.V.
|
|
By:____________________________________
Title: Chief Financial
Officer
|
|
EMPRESAS
TOLTECA DE MÉXICO, S.A.
DE C.V.
|
|
By:____________________________________
Title: Chief Financial
Officer
|
|
ING
CAPITAL LLC, as Administrative Agent acting in its own capacity and
for
and on behalf of the Required Lenders
|
|
By:____________________________________
Title: Director
|
5
