AMENDMENT AND WAIVER AGREEMENT
Exhibit
(b)(1)(F)
EXECUTION
COPY
THIS
AMENDMENT AND WAIVER AGREEMENT (as amended, supplemented or
otherwise modified
from time to time, this “Agreement”),
dated
as of November 30, 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
BARCLAYS BANK PLC, NEW YORK BRANCH, 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, Barclays Capital, The Investment Banking
Division of
Barclays Bank PLC, as Joint Lead Arranger and Joint Bookrunner
and Citigroup
Global Markets Inc. as Documentation Agent, Joint Lead Arranger
and Joint
Bookrunner, entered into a credit agreement, dated as of May
31, 2005 (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 8.01(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
13.02
of the
Credit Agreement, hereby waive compliance by the Borrower with
the financial
condition covenant set forth Section
8.01(a)
of the
Credit Agreement.
SECTION
3.2 Waiver
of
Compliance with Section
8.01(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 8.01(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.
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SECTION
3.4 Compliance
with Section 8.01(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
8.01(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 8.01of the Credit Agreement.
Section
8.01
of the
Credit Agreement is amended by inserting the following paragraph
(d)
at the
end of Section
8.01:
“(d)
For
the
purposes of calculating the Consolidated Net Debt to EBITDA
Ratio in Section
8.01(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.
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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.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as
of the day and year first above written.
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CEMEX,
S.A.B.
DE C.V.
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By:____________________________________
Title Chief Financial Officer
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CEMEX
MÉXICO, S.A.
DE C.V.
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By:____________________________________
Title Chief Financial Officer
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EMPRESAS
TOLTECA DE MÉXICO, S.A.
DE C.V.
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By:____________________________________
Title Chief Financial Officer
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BARCLAYS
BANK PLC, NEW YORK BRANCH, as Administrative Agent
acting in its own
capacity and for and on behalf of the Required
Lenders
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By:____________________________________
Title Associate Director
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