Amendment and Security Confirmation Agreement (the “Agreement”) dated ________________ 2020 between CEMEX, S.A.B. de C.V. and Interamerican Investments, Inc. and Wilmington Trust (London) Limited acting for itself (including as creditor of the...

Exhibit 4.6.5

				Amendment and Security Confirmation Agreement
				(the “Agreement”)
dated				________________ 2020
between				CEMEX, S.A.B. de C.V.
and				Interamerican Investments, Inc.
and				Wilmington Trust (London) Limited
				acting for itself (including as creditor of the Parallel Debt Obligations) and as direct representative (direkter Stellvertreter) in the name and for the account of all other Pledgees (as defined below)
concerning				the confirmation of the pledge of 1’947’382’051 shares in the Company (as defined below)

Amendment and Security Confirmation Agreement 2

THIS AMENDMENT AND SECURITY CONFIRMATION AGREEMENT is entered into between:

(1) CEMEX, S.A.B. de C.V., Xx Xxxxxxxxxxxx 000 Xxx. Xxx., Xxxxxx, X.X. 00000, Monterrey, N.L., México (hereinafter “CEMEX”);

(2) Interamerican Investments, Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, 00000 Xxxxxxxx, Xxxxxx Xxxxxx (hereinafter “Interamerican”);

(CEMEX and Interamerican collectively referred to as the “Pledgors”); and

(3) Wilmington Trust (London) Limited, 1 King’s Arms Yard, Third Floor, London EC2R 7AF, United Kingdom, acting for itself (including as creditor of the Parallel Debt Obligations) and as direct representative (direkter Stellvertreter) in the name and for the account of all other Pledgees (as defined below) (the “Security Agent”).

RECITALS

A) CEMEX and certain of its subsidiaries as Original Borrowers, Original Guarantors and Original Security Providers (including the Company), the Original Creditors, Citibank Europe PLC, UK Branch (formerly Citibank International plc) as Agent and Wilmington Trust (London) Limited as Security Agent, among others, entered into a facilities agreement dated 29 September 2014, as amended and restated on 23 July 2015, 17 March 2016, 23 June 2016, 11 July 2016 and 21 November 2016 (each term as defined therein unless defined otherwise in this Agreement) (the “Club Loan”) and an intercreditor agreement dated 17 September 2012 as amended and restated pursuant to a deed of amendment dated 23 July 2015 and an amendment and restatement deed dated 19 July 2017 (the “Intercreditor Agreement”).

B) On 19 July 2017, CEMEX as Borrower, the subsidiaries of the Borrower (including the Company) listed in Part I of Schedule 1 thereto as Original Guarantors or respectively as Original Security Providers, Banco Mercantil del Norte, S.A., Institución De Banca Múltiple, Grupo Financiero Banorte, Banco Santander (México), S.A., Institución De Banca Múltiple, Grupo Financiero Santander México, BBVA Bancomer, S.A., Institución De Banca Múltiple Grupo Financiero BBVA Bancomer, BNP Paribas Securities Corp., Citigroup Global Markets Inc., Crédit Agricole Corporate and Investment Bank, HSBC Securities (USA) Inc., ING Capital LLC, JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd., and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as Arrangers, the financial institutions listed in Part II of Schedule 1 as Original Lenders, Citibank Europe PLC, UK Branch as Agent and Wilmington Trust (London) Limited as Security Agent entered into a term and revolving facilities agreement, as amended and restated on 2 April 2019 pursuant to an amendment and restatement agreement dated 2 April 2019 between, among others, CEMEX, the financial institutions named therein as Original Lenders, the Agent and the Security Agent, as amended and restated on 4 November 2019 pursuant to an amendment and restatement agreement dated 4 November 2019 between, among

Amendment and Security Confirmation Agreement 3

others, CEMEX and the Agent and as amended on 22 May 2020 pursuant to an amendment agreement dated 22 May 2020 between, among others, CEMEX and the Agent (each term as defined therein unless defined otherwise herein) (the “Facilities Agreement”) pursuant to which all commitments under the Club Loan were cancelled on the first Utilisation Date (as defined in the Facilities Agreement).

C) In connection with the Club Loan, the Facilities Agreement and the Intercreditor Agreement, the Pledgors, CEMEX México, S.A. de C.V., Empresas Tolteca de México, S.A. de C.V. and the Security Agent acting for itself (including as creditor of the Parallel Debt Obligations) and as direct representative (direkter Stellvertreter) in the name and for the account of all other Pledgees entered into a Swiss law governed share pledge agreement dated 17 September 2012 regarding the pledge of 1’938’958’014 shares in the Company, as confirmed and (with respect of clauses 13.1 and 13.2 thereof) amended pursuant to a security confirmation agreement dated 23 July 2015 and re-confirmed on 17 March 2016, 19 July 2017 and 2 April 2019 (the “Share Pledge Agreement”).

D) On 19 July 2017, CEMEX and the Security Agent acting for itself (including as creditor of the Parallel Debt Obligations) and as direct representative (direkter Stellvertreter) in the name and for the account of all other Pledgees entered into a Swiss law governed share pledge agreement regarding the pledge of 8,424,037 shares in the Company, as confirmed on 2 April 2019 (the “Residual Share Pledge Agreement” and together with the Share Pledge Agreement, the “Security Agreements”, and each a “Security Agreement”).

E) On the date hereof, CEMEX as Borrower, the subsidiaries of the Borrower (including the Company) listed in Part I or Part II, respectively, of Schedule 1 thereto as Original Guarantors or respectively as Original Security Providers, the financial institutions listed in Part III of Schedule 1 as Original Lenders, Citibank Europe PLC, UK Branch as Agent and Wilmington Trust (London) Limited as Security Agent entered into an amendment and restatement agreement in relation to the Facilities Agreement (each term as defined therein unless defined otherwise herein) (the “Amendment and Restatement Agreement”, and the Facilities Agreement as amended and restated by the Amendment and Restatement Agreement, the “Amended Facilities Agreement”).

F) It is a condition precedent under the Amendment and Restatement Agreement that the Pledgors enter into this Agreement.

G) CEMEX, as absorbing company, absorbed (i) Empresas Tolteca de México, S.A de C.V. (“Tolteca”), as disappearing company, through merger effective as of 26 February 2020, and (ii) CEMEX México, S.A. de C.V. (“CEMEX Mexico”), as disappearing company, through merger effective as of 9 March 2020 (the “Mergers”).

H) In order to (i) replace Tolteca and CEMEX Mexico as pledgors under the Share Pledge Agreement due to the Mergers and (ii) confirm that the Pledge created under each of the Security Agreements continues to secure the Secured Obligations (as amended, modified, extended restated and/or increased from time to time), the parties agree to enter into this Agreement.

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I) The Security Agent has been duly appointed under the Intercreditor Agreement, to act as security agent and shall act in its capacity as security agent and in the name and for the account of the Pledgees in connection with the execution, delivery and performance of this Agreement and shall exercise the rights of the Pledgees arising hereunder as their direct representative (direkter Stellvertreter).

IT IS AGREED as follows:

1 Definitions and Interpretation

1.1 Definitions

Unless defined otherwise herein, capitalized terms and expressions used herein shall have the meaning ascribed to them in the Amended Facilities Agreement and if not defined therein, as defined in the Intercreditor Agreement. In this Agreement (capitalized terms as defined below):

		Agreement		means this amendment and security confirmation agreement.
		Amended Facilities Agreement		has the meaning given to such term in Recital (E).
		Amendment and Restatement Agreement		has the meaning given to such term in Recital (E).
		Bail-in Action		means the exercise of any Write-down and Conversion Powers.
		Bail-in Legislation		means a)  in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-in Legislation Schedule from time to time; and b)  in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
		Club Loan		has the meaning given to such term in Recital (A).

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		Company		means Cemex Innovation Holding Ltd. (formerly known as CEMEX TRADEMARKS HOLDING Ltd.), a stock corporation (Aktiengesellschaft) incorporated under the laws of Switzerland and registered under number CHE-109.294.363 with the commercial register authority of the Canton of Zug.
		Debtor		means the Debtor and each Security Provider as defined in the Intercreditor Agreement.
		EEA Member Country		means any member state of the European Union, Iceland, Liechtenstein and Norway.
		Effective Date		means the Amendment Effective Date as defined in the Amendment and Restatement Agreement.
		EU Bail-in Legislation Schedule		means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
		Facilities Agreement		has the meaning given to such term in Recital (B).
		Intercreditor Agreement		has the meaning given to such term in Recital (A).
		Mergers		has the meaning given to such term in Recital (G).
		Parallel Debt Obligation		means the obligations set out in Clause 11.2 (Finance Parallel Debt (Covenant to pay the Security Agent)) and Clause 11.3 (Notes Parallel Debt (Covenant to pay the Security Agent)) of the Intercreditor Agreement.
		Pledge		has the meaning given to such term in the Share Pledge Agreement and the Residual Share Pledge Agreement (as applicable).
		Pledgees		means the Pledgees as defined in the Share Pledge Agreement and the Residual Share Pledge Agreement (as applicable) (including, for the avoidance of doubt, the Secured Parties as defined in the Intercreditor Agreement).
		Pledgors		means CEMEX and Interamerican.
		Residual Share Pledge Agreement		has the meaning given to such term in Recital (D).
		Resolution Authority		means any body which has authority to exercise any Write-down and Conversion Powers.

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		Security Agent		means Wilmington Trust (London) Limited, 1 King’s Arms Yard, Third Floor, London EC2R 7AF, United Kingdom, acting for itself (including as creditor of the Parallel Debt Obligations) and as direct representative (direkter Stellvertreter) in the name and for the account of all other Pledgees.
		Security Agreements		has the meaning given to such term in Recital (D).
		Share Pledge Agreement		has the meaning given to such term in Recital (C).
		Write-down and Conversion Powers		means a)  in relation to any Bail-in Legislation described in the EU Bail-in Legislation Schedule from time to time, the powers described as such in relation to that Bail-in Legislation in the EU Bail-in Legislation Schedule; b)  in relation to any other applicable Bail-in Legislation: (i) any powers under that Bail-in Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-in Legislation that are related to or ancillary to any of those powers; and (ii)  any similar or analogous powers under that Bail-in Legislation.

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1.2 Interpretation

In this Agreement:

a) unless the context requires otherwise, references herein to the Security Agent shall be read as references to the Security Agent acting for itself (including as creditor of the Parallel Debt Obligations) and as direct representative (direkter Stellvertreter) in the name and for the account of all other Pledgees;

b) in the event of a conflict between the terms of this Agreement and the Amended Facilities Agreement, then (to the extent permitted by law and to the extent the validity and enforceability of the security created under this Agreement is not affected) the terms of the Amended Facilities Agreement shall prevail;

c) in the event of a conflict between the terms of this Agreement and the Intercreditor Agreement, then (to the extent the validity and enforceability of the security created under this Agreement is not affected) the terms of the Intercreditor Agreement shall prevail; and

d) in the event of a conflict between the terms of this Agreement and any Debt Document other than the Amended Facilities Agreement or the Intercreditor Agreement, then the terms of this Agreement shall prevail.

2 Replacement of Tolteca and CEMEX Mexico

With respect to the Share Pledge Agreement, the parties agree and hereby confirm that with effect as of the date of this Agreement, Tolteca, respectively CEMEX México shall resign as pledgors and be replaced by CEMEX.

3 Confirmation

As of the Effective Date, each of the Pledgors confirms for the benefit of the Security Agent and the other Pledgees that the Pledge and other security interests granted in connection with and pursuant to the terms of the Security Agreements¹ (as applicable) are and continue in full force and effect and hereafter shall continue to secure the Secured Obligations under and as defined in the Security Agreements (as applicable) (which includes, inter alia, all obligations owed by the Debtor in relation to the Amended Facilities Agreement and the Intercreditor Agreement).

Furthermore, each of the Pledgors confirms as of the Effective Date for the benefit of the Security Agent and the other Pledgees that the Pledge and other security interests granted in connection with and pursuant to the terms of the Security Agreements (as applicable) shall, for the avoidance of doubt, also secure the obligations owed by the Debtor or Security Provider (as applicable) from time to time to any Facilities Agreement Creditor, any Refinancing Creditor and any Additional Notes Creditor, each as defined in the Intercreditor Agreement.

¹  Making use of the new defined term.

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For the avoidance of doubt, each party hereby confirms that this Agreement shall not and does not cause a novation (keine Novation) of any of the rights or obligations of any party under the Share Pledge Agreement or the Residual Share Pledge Agreement (as applicable).

The Pledgors further agree and confirm that for the benefit of the Security Agent as of the Effective Date all references in the Security Agreements (as applicable):

a) to the “Facilities Agreement” are references to the Amended Facilities Agreement;

b) all references to the “Intercreditor Agreement” are references to the Intercreditor Agreement.

4 Credit Facility Document and Security Document

The parties agree that this Agreement is a Debt Document, Finance Document and a Transaction Security Document.

5 Contractual Recognition of Bail-in

Notwithstanding any other term of this Agreement or any other agreement, arrangement or understanding between the parties, the Pledgors acknowledge and accept that any liability of the Security Agent and/or any Secured Party under or in connection with this Agreement may be subject to Bail-in Action by the relevant Resolution Authority and acknowledge and accept to be bound by the effect of:

a) any Bail-in Action in relation to any such liability, including (without limitation):

(i) a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;

(ii) a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, them; and

(iii) a cancellation of any such liability; and

b) a variation of any term of any Debt Document to the extent necessary to give effect to any Bail-in Action in relation to any such liability.

The Pledgors further agree that upon the taking of any Bail-in Action by a relevant Resolution Authority, any liability of the Security Agent and/or any Secured Party to the Pledgors under this Agreement shall, as a matter of contract as between the parties, be reduced, converted, cancelled, or suspended (and that any term of this Agreement shall be varied) in such manner as it is expressed to be pursuant to such Bail-in Action.

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6 Waivers and Amendments

a) No failure on the part of the Security Agent to exercise, or delay on its part in exercising any right under this Agreement or the Security Agreements shall operate as a waiver thereof, nor shall any single or partial exercise of a right under this Agreement or the Security Agreements preclude any further or other exercise of that or any other right under the Debt Documents.

b) Any amendment or waiver of this Agreement or any provision of this Agreement shall only be binding if agreed in writing by the parties hereto.

7 Severability

If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, this shall not affect or impair (i) the validity or enforceability in that jurisdiction of any other provision of this Agreement or (ii) the validity or enforceability in any other jurisdiction of that or any other provision of this Agreement. The illegal, invalid or unenforceable provision shall be replaced by a legal, valid and enforceable provision which approximates as closely as possible to the economic purpose of the illegal, invalid or unenforceable provision. The same shall apply mutatis mutandis in case of omissions.

8 Counterparts

This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.

9 Law and Jurisdiction

a) This Agreement shall in all respects, including all the rights in rem aspects, be governed by, and construed in accordance with, the substantive laws of Switzerland (under the exclusion of the conflict of law rules, including the Swiss Federal Statute on Private International Law of 18 December 1987, as amended).

b) Each party submits to the exclusive jurisdiction of the ordinary courts of the city of Zurich (ordentliche Gerichte der Stadt Zürich), Switzerland, venue being Zurich 1 (and if permitted to the Commercial Court of the Canton of Zurich (Handelsgericht des Kantons Zürich)), with the right to appeal to the Swiss Federal Court (Schweizerisches Bundesgericht) in Lausanne as provided by law, whose judgment shall be final, for all purposes relating to this Agreement. The Security Agent and each of the other Pledgees reserve the right to bring an action against the Pledgors at each of the Pledgors’ place of domicile or before any other competent court, in which case Swiss law shall nevertheless be applicable as provided in Article 9a) above.

Signatures on next page

Security Confirmation Agreement

The Pledgors:

CEMEX, S.A.B. de C.V.

/s/ Xxxxxxxx Xxxxxxx Xxxxx

Name:  Xxxxxxxx Xxxxxxx Xxxxx

Title:    Attorney-in-fact

Interamerican Investments, Inc.

/s/ Xxxxxxxx Xxxxxxx Xxxxx

Name:  Xxxxxxxx Xxxxxxx Xxxxx

Title:    Attorney-in-fact

Amendment and Security Confirmation Agreement 2

The Security Agent:

Wilmington Trust (London) Limited

as Pledgee and Security Agent acting for itself (including as creditor of the Parallel Debt Obligations) and as direct representative (direkter Stellvertreter) in the name and for the account of all other Pledgees

/s/ Xxxxxx Xxxxx

Name: Xxxxxx Xxxxx

Title:   Vice President