US$9,000,000,000 ACQUISITION FACILITIES AGREEMENT dated 6 DECEMBER 2006 for CEMEX ESPAÑA, S.A,. as Borrower CITIGROUP GLOBAL MARKETS LIMITED THE ROYAL BANK OF SCOTLAND PLC AND BANCO BILBAO VIZCAYA ARGENTARIA, S.A. as Mandated Lead Arrangers and Joint...
Exhibit
(b)(1)(H)
LIMITED
LIABILITY PARTNERSHIP
X
X X X X X X X
C
H A N C E
US$9,000,000,000
dated 6
DECEMBER 2006
for
CEMEX
ESPAÑA, S.A,.
as
Borrower
CITIGROUP
GLOBAL MARKETS LIMITED
THE
ROYAL BANK OF SCOTLAND PLC
AND
BANCO
BILBAO VIZCAYA ARGENTARIA, S.A.
as
Mandated Lead Arrangers and Joint Bookrunners
with
THE
ROYAL BANK OF SCOTLAND PLC
acting
as Agent
|
1.
|
DEFINITIONS
AND INTERPRETATION
|
1
|
|
2.
|
THE
FACILITIES
|
21
|
|
3.
|
PURPOSE
|
22
|
|
4.
|
CONDITIONS
OF UTILISATION
|
22
|
|
5.
|
UTILISATION
|
26
|
|
6.
|
OPTIONAL
CURRENCIES
|
27
|
|
7.
|
REPAYMENT
|
30
|
|
8.
|
CONVERSION
OF FACILITY A
|
30
|
|
9.
|
PREPAYMENT
AND CANCELLATION
|
32
|
|
10.
|
INTEREST
|
29
|
|
11.
|
INTEREST
PERIODS
|
40
|
|
12.
|
CHANGES
TO THE CALCULATION OF INTEREST
|
41
|
|
13.
|
FEES
|
42
|
|
14.
|
TAX
GROSS-UP AND INDEMNITIES
|
44
|
|
15.
|
INCREASED
COSTS
|
47
|
|
16.
|
OTHER
INDEMNITIES
|
49
|
|
17.
|
MITIGATION
BY THE LENDERS
|
51
|
|
18.
|
COSTS
AND EXPENSES
|
51
|
|
19.
|
GUARANTEE
AND INDEMNITY
|
53
|
|
20.
|
REPRESENTATIONS
|
56
|
|
21.
|
INFORMATION
UNDERTAKINGS
|
60
|
|
22.
|
FINANCIAL
COVENANTS
|
63
|
|
23.
|
GENERAL
UNDERTAKINGS
|
65
|
|
24.
|
EVENTS
OF XXXXXXX
|
00
|
|
00.
|
CHANGES
TO THE LENDERS
|
81
|
|
26.
|
CHANGES
TO THE OBLIGORS
|
85
|
|
27.
|
ROLE
OF THE AGENT AND THE ARRANGER
|
89
|
|
28.
|
CONDUCT
OF BUSINESS BY THE FINANCE PARTIES
|
94
|
|
29.
|
SHARING
AMONG THE FINANCE PARTIES
|
94
|
|
30.
|
PAYMENT
MECHANICS
|
96
|
|
31.
|
SET-OFF
|
98
|
|
32.
|
NOTICES
|
98
|
|
33.
|
CALCULATIONS
AND CERTIFICATES
|
102
|
|
34.
|
PARTIAL
INVALIDITY
|
103
|
|
35.
|
REMEDIES
AND WAIVERS
|
103
|
|
36.
|
AMENDMENTS
AND WAIVERS
|
103
|
|
37.
|
COUNTERPARTS
|
104
|
|
38.
|
GOVERNING
LAW
|
105
|
|
39.
|
ENFORCEMENT
|
105
|
|
SCHEDULE
1
|
The
Original Parties
|
106
|
|
Part
I
|
The
Obligors
|
106
|
|
Part
II
|
The
Original Lenders
|
107
|
|
SCHEDULE
2
|
Conditions
Precedent
|
108
|
|
Part
I
|
Conditions
Precedent to Initial Utilisation
|
108
|
|
Part
II
|
Conditions
Precedent Required to be delivered by an Additional Obligor
|
111
|
|
SCHEDULE
3
|
Requests
|
113
|
|
Part
I
|
Utilisation
Request
|
113
|
|
Part
II
|
Selection
Notice
|
115
|
|
Part
III
|
Conversion
Request
|
116
|
|
SCHEDULE
4
|
Mandatory
Cost Formulae
|
117
|
|
SCHEDULE
5
|
Form
Of Transfer Certificate
|
120
|
|
SCHEDULE
6
|
Form
Of Accession Letter
|
122
|
|
SCHEDULE
7
|
Form
Of Compliance Certificate
|
123
|
|
SCHEDULE
8
|
Timetables
|
125
|
|
SCHEDULE
9
|
Form
of LMA Confidentiality Undertaking
|
127
|
|
SCHEDULE
10
|
Existing
Security
|
132
|
|
SCHEDULE
11
|
Existing
Notarisations
|
133
|
|
SCHEDULE
12
|
Material
Subsidiaries
|
134
|
|
SCHEDULE
13
|
Existing
Financial Indebtedness
|
135
|
THIS
FACILITIES AGREEMENT
is dated
6 December 2006 and made
BETWEEN:
| (1) |
CEMEX
ESPAÑA, S.A.
as referred to in Part I of Schedule 1 (The
Obligors)
(the "Original
Borrower"
or the "Company");
|
| (2) |
CITIGROUP
GLOBAL MARKETS LIMITED,
THE ROYAL BANK OF SCOTLAND PLC and
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
as
mandated lead arrangers and joint bookrunners (acting whether individually
or together the "Arranger");
|
| (3) |
THE
FINANCIAL INSTITUTIONS
listed in Part II of Schedule 1 (The
Original Lenders)
as lenders (the "Original
Lenders");
and
|
| (4) |
THE
ROYAL BANK OF SCOTLAND PLC
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 6 (Form
of Accession Letter).
"Acquisition
Utilisation"
means a
Loan made or to be made for one or more of the purposes set out in paragraphs
(a), (b) or (c) of Clause 3.1
(Purpose).
"Acquisition
of BidCo Date"
means
the date on which BidCo first becomes a Subsidiary of the Company.
"Acquisition
of Target Date"
means
the date on which the Target first becomes a Subsidiary of BidCo.
"Additional
Cost Rate"
has the
meaning given to it in paragraph 2 of Schedule 4 (Mandatory
Cost Formulae).
"Additional
Borrower"
means a
company which becomes an Additional Borrower in accordance with Clause 26
(Changes
to the Obligors).
"Additional
Guarantor"
means a
company which becomes an Additional Guarantor in accordance with Clause 26
(Changes
to the Obligors).
"Additional
Obligor"
means
an Additional Borrower or an Additional Guarantor.
"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.
-
1 -
"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. on
a
particular day.
"Announcement"
means
the announcement dated 27 October 2006 made by Cemex Parent in respect of the
Offer.
"Assignment
Agreement"
means
an assignment agreement in the form agreed between the relevant assignor and
assignee and approved by the Agent.
"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 the
date falling 364 days after the date of this Agreement, unless such date is
not
a Business Day, in which case the last day of the Availability Period shall
be
the Business Day immediately prior thereto.
"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 the case of Facility A only) that Lender's participation in any
Facility A Loans (excluding Facility A Term 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 Company 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 or, if later, on the date the Agent
receives the Utilisation Request in accordance with the terms of this Agreement)
as adjusted to reflect any repayment, prepayment, consolidation or division
of a
Utilisation.
-
2 -
"BidCo"
means
CEMEX Australia Pty Ltd (ACN 122 401 405), a proprietary limited company
incorporated under the laws of Australia and registered in the state of
Victoria, being a special purpose vehicle incorporated (indirectly) by Cemex
Parent for the purposes of making the Offer.
"BidCo
Group"
means
BidCo and its Subsidiaries from time to time.
"Borrowers"
means
the Original Borrower and any Additional Borrower unless, in each case, such
entity has ceased to be a Borrower in accordance with Clause 26
(Changes
to the Obligors)
and
"Borrower"
means
any of them.
"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 on that day (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 London, Madrid 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) 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
any lease that is capitalised on the balance sheet of the Company prepared
in
accordance with Spanish GAAP.
"Cemex
Parent"
means
CEMEX, S.A.B. de C.V., a company (sociedad
anónima bursátil de capital variable)
incorporated in Mexico.
"Cemex
UK"
means
Cemex UK, a Subsidiary of the Company incorporated in England and Wales with
company number 05196131 and having its registered office at Xxxxx Xxxxx,
Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx, Xxxxxx XX00 0XX.
"Certain
Funds Breach"
means
in respect of the Company and its Subsidiaries from time to time only and not,
for the avoidance of doubt, relating to any member of the Target
Group
-
3 -
(including
any failure to procure its compliance), an outstanding breach of Clause
3.1
(Purpose)
arising
from the failure of a Borrower or BidCo to apply the proceeds of an Acquisition
Utilisation for the purposes (being one of those listed at paragraph (a), (b)
or
(c) of Clause 3.1
(Purpose))
for
which it was advanced, Clauses 23.6
(Negative
Pledge)
(other
than any breach in respect of a judgment lien), 23.8
(Merger)
(other
than any breach arising from a downgrade in the Rating of the Company),
23.14
(Pari
passu ranking)
or
23.18
(The
Offer).
"Certain
Funds Default"
means
(a) any outstanding Event of Default in respect of the Company and its
Subsidiaries from time to time only and not, for the avoidance of doubt,
relating to any member of the Target Group (including any failure to procure
its
compliance) under any of Clauses 24.1
(Non-payment),
24.3
(Other
obligations) only in relation to a Certain Funds Breach, 24.4
(Misrepresentation)
only in
relation to a Certain Funds Representation, 24.6
(Insolvency),
24.7
(Insolvency
proceedings),
24.12
(Unlawfulness),
24.13
(Repudiation)
or
24.15
(BidCo)
or (b)
any failure by the Company to comply with the requirements of Clause
4.1
(Initial
Conditions Precedent)
(other
than in respect of paragraphs 4(a) and (b), 5(d) and 6(b) of Part I of Schedule
2 (Conditions
Precedent)).
"Certain
Funds Representation"
means
in respect of the Company and its Subsidiaries from time to time only and not,
for the avoidance of doubt, relating to any member of the Target Group
(including any failure to procure its compliance), any of the representations
contained in Clause 20.1
(Status)
to
Clause 20.4
(Power
and authority)
(inclusive) and 20.14
(Offer
Documents Information)
where,
in each case, breach would lead to a Material Adverse Effect.
"Certain
Funds Period"
means
the period commencing on the date of this Agreement and ending on the last
day
of the Availability Period.
"Clean-Up
End Date"
means
the date falling 180 days after the Acquisition of Target Date.
"Clean-Up
Period"
means
the period commencing on the Acquisition of Target Date and ending on the
Clean-Up End Date.
"CO2
Emission Rights"
means
any emission rights or allowance allocated to a member of the Group to emit
one
tonne of carbon dioxide equivalent (as defined in the Directive) during a
specified period which is valid and/or transferable under the Directive and
any
other type of allowance recognised by the Directive in connection with the
Kyoto
Protocol on climate change.
"Commitment"
means a
Facility A Commitment, a Facility B Commitment and/or Facility C
Commitment.
"Compliance
Certificate"
means a
certificate substantially in the form set out in Schedule 7 (Form
of Compliance Certificate).
"Conversion
Request"
means a
request in the form set out in Part III of Schedule 3 (Requests).
"Confidentiality
Undertaking"
means a
confidentiality undertaking substantially in a recommended form of the LMA
as
set out in Schedule 9 (Form
of LMA Confidentiality Undertaking)
or in
any other form agreed between the Company and the Agent.
-
4 -
"Corporations
Act"
means
the Corporations Xxx 0000 (Commonwealth of Australia), as amended from time
to
time.
"Default"
means
an Event of Default or any event or circumstance specified in Clause
24
(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.
"Directive"
means
Directive 2003/87/EC of the European Parliament and of the Council of 13 October
2003 establishing a scheme for greenhouse gas emission allowance trading within
the European Community (as amended by Directive 2004/101/EC of the European
Parliament and of the Council of 27 October 2004 and as further amended from
time to time).
"Discharged
Rights and Obligations"
has the
meaning given to such term in Clause 25.5
(Procedure
for transfer).
"Domestic
Lender"
means
any Spanish resident credit entity registered in the Special Registries of
The
Bank of Spain as defined in article 8 of Royal Legislative Decree 4/2004 of
5
March and mentioned in paragraph (c) of Article 59 of Corporate Income Tax
Regulations approved by Royal Decree 1777/2004 of 30 July (Real Decreto
1777/2004 de 30 de xxxxx) or a permanent establishment of a non-Spanish resident
financial entity as defined in article 13.1.a of Royal Legislative Decree 5/2004
of 5 March and mentioned in the second paragraph of Article 8.1 of Non-Resident
Income Tax Regulations approved by Royal Decree 1776/2004 of 30 July (Real
Decreto 1776/2004 de 30 xxxxx).
"Environmental
Claim"
means
any claim, proceeding or investigation by any person in respect of any
Environmental Law.
"Environmental
Law"
means
any applicable law or regulation in any jurisdiction in which any member of
the
Group conducts business which relates to the pollution or protection of the
environment or harm to or the protection of human health or the health of
animals or plants.
"Environmental
Permits"
means
any permit, licence, consent, approval and other authorisation and the filing
of
any notification, report or assessment required under any Environmental Law
for
the operation of the business of any member of the Group conducted on or from
the properties owned or used by the relevant member of the Group.
"ERISA"
means
the United States Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"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,
|
-
5 -
as
of the
Specified 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 24
(Events
of Default).
"Existing
Target Debt"
means
the indebtedness for borrowed monies of the Target Group existing at close
of
business on the Acquisition of Target Date.
"Facility"
means
any of Facility A, Facility B or Facility C.
"Facility
A"
means
the multicurrency revolving loan facility (with term-out option) 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 Parties)
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 Term Loan"
means a
Facility A Loan which has been converted into a term loan pursuant to Clause
8
(Conversion
of Facility A).
"Facility
B"
means
the multicurrency term 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 Parties)
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
C"
means
the multicurrency term loan facility made available under this Agreement as
described in paragraph (c) of Clause 2.1
(The
Facilities).
-
6 -
"Facility
C Commitment"
means:
| (a) |
in
relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility
C Commitment"
in Part II of Schedule
1 (The
Original Parties)
and the amount of any other Facility C Commitment transferred to
it under
this Agreement; and
|
|
| (b) | in relation to any other Lender, the amount in the Base Currency of any Facility C Commitment transferred to it under this Agreement, |
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility
C Loan"
means a
loan made or to be made under Facility C or the principal amount outstanding
for
the time being of that loan.
"Facility
Office"
means:
| (a) |
in
respect of a Lender, the office or offices notified by
that 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; or
|
|
| (b) | in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes. |
"Fee
Letter"
means
each of:
| (a) |
the
fee letter dated 26 October 2006 between, among others,
Citigroup Global Markets Limited, The Royal Bank of Scotland plc
and the
Company;
|
|
| (b) | the fee letter dated 26 October 2006 between the Agent and the Company; and | |
| (c) |
any
other letter or agreement between the Arranger (or the
Agent) and the Company setting out the level of fees payable in
respect of
the Facilities.
|
"Finance
Document"
means
this Agreement, the Mandate and Commitment Letter, any Accession Letter, each
Fee Letter, any Selection Notice and any other document designated in writing
as
a "Finance
Document"
by the
Agent and the Company.
"Finance
Party"
means
the Agent, the Arranger or a Lender.
"Financial
Indebtedness"
means
any indebtedness for or in respect of, and without double counting:
| (a) |
moneys
borrowed (including, but not limited to, any amount
raised by acceptance under any acceptance credit facility and receivables
sold or discounted
on a recourse basis (it being understood that Permitted Securitisations
shall be deemed not to be on a recourse basis));
|
|
| (b) | any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; |
-
7 -
| (c) |
the
amount of any liability in respect of any lease or hire
purchase contract that would, in accordance with Spanish GAAP,
be treated
as a Capital Lease;
|
|
| (d) | the deferred purchase price of assets or the deferred payment of services, except trade accounts payable in the ordinary course of business; | |
| (e) | obligations of a person under repurchase agreements for the stock issued by such person or another person; | |
| (f) | obligations of a person with respect to product invoices incurred in connection with exporting financing; | |
| (g) |
all
Financial Indebtedness of others secured by Security on
any asset of a person, regardless of whether such Financial Indebtedness
is assumed by such
person in an amount equal to the lower of (i) the net book value
of such
asset and (ii) the amount secured thereby; and
|
|
| (h) | the amount of any potential liability in respect of guarantees of Financial Indebtedness referred to in paragraphs (a) to (g) above. |
"First
Term Out Option Termination Date"
means
the date falling 180 days after the Initial Facility A Termination Date (or
if
such date is not a Business Day, the next succeeding Business Day).
"First
Utilisation Date"
means
the date on which the first Utilisation is made under this
Agreement.
"Fitch"
means
Fitch Ratings Limited or any successor thereto from time to time.
"Funds
Flow Statement"
means
the funds flow statement prepared by the Company detailing, inter
alia,
how the
Offer is to be funded (being the final version thereof delivered to the Agent
pursuant to Clause 4.1
(Initial
Conditions Precedent)).
"GAAP"
means,
in relation to an Obligor, the generally accepted accounting principles applying
to it (i) in the country of its incorporation; (ii) in a jurisdiction specified
as applicable to it in this Agreement; or (iii) in a jurisdiction agreed to
by
the Agent which may, in each case, include International Accounting
Standards.
"Group"
means
the Company and each of its Subsidiaries from time to time.
"Group
Structure Chart"
means
the group structure chart prepared by the Company, (assuming the Acquisition
of
Target Date has occurred), showing Cemex Parent, the Company, BidCo, Target
and
each Material Subsidiary (and the intended structure of the Group following
the
Acquisition of BidCo Date) (being the final version thereof delivered to the
Agent pursuant to Clause 4.1
(Initial
Conditions Precedent)).
"Guarantor
Removal Certificate"
has the
meaning assigned to such term in Clause 26.6
(Removal
of Guarantor).
"Guarantors"
means
any Additional Guarantor other than any Additional Guarantor which has ceased
to
be a Guarantor pursuant to Clause 26.4
(Resignation
of Guarantor)
or been
removed as a Guarantor pursuant to Clause 26.6
(Removal
of Guarantor)
and has
not subsequently again become an Additional Guarantor pursuant to Clause
26.3
(Additional
Guarantors)
and
"Guarantor"
means
any of them.
-
8 -
"Holding
Company"
means,
in relation to a company or corporation, any other company or corporation in
respect of which it is a Subsidiary.
"Information
Memorandum"
means
the document which, at the request of the Company and on its behalf, was
prepared in relation to the financing of the acquisition of the Target Shares
and approved by the Company and distributed by the Arranger prior to the
Syndication Date in connection with the syndication of the
Facilities.
"Initial
Facility A Termination Date"
means
the date falling 364 days after the date of this Agreement.
"Intellectual
Property"
means:
| (a) |
any
patents, trade marks, service marks, designs, business
names, copyrights, design rights, data-base rights, inventions,
knowhow
and other intellectual
property rights and interests, whether registered or unregistered;
and
|
|
| (b) | the benefit of all applications and rights to use such assets of each member of the Group. |
"Interest
Period"
means,
in relation to a Loan, each period determined in accordance with Clause
11
(Interest
Periods)
and, in
relation to an Unpaid Sum, each period determined in accordance with Clause
10.3
(Default
interest).
"International
Accounting Standards"
means
the accounting standards approved by the International Accounting Standards
Board from time to time.
"Kyoto
Protocol"
means
the Kyoto Protocol to the United Nations Framework Convention on Climate Change
adopted by consensus at the Third Session of the Conference of the Parties
in
December 1997.
"Legal
Opinions"
means
the legal opinions delivered to the Agent pursuant to Clause 4.1
(Initial
Conditions Precedent)
or in
relation to any Additional Obligors.
"Lender"
means:
| (a) | any Original Lender; and | |
| (b) |
any
bank, financial institution, trust, fund or other entity
which is regularly engaged in or established for the purpose of
making,
purchasing or
investing in
loans, securities or
other financial assets which, in each case, has become a Party
in
accordance with Clause 25
(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:
-
9 -
| (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 the
Specified 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.
"LMA"
means
the Loan Market Association.
"Loan"
means
any of a Facility A Loan, a Facility B Loan or a Facility C Loan.
"M&A
Advisor"
means
the mergers and acquisitions and financial advisor(s) to Cemex Parent (or its
applicable Subsidiary) in respect of the Offer.
"Majority
Lenders"
means a
Lender or Lenders whose undrawn Commitments and participations in the Loans
then
outstanding aggregate more than 51 per cent. of all the undrawn Commitments
and
Loans then outstanding.
"Mandate
and Commitment Letter"
means
the letter entitled "Project Xxxxxxxx mandate and commitment letter" dated
26
October 2006 (and the supplemental letter thereto dated 14 November 2006)
entered into by the Company in respect of the Facilities (as amended from time
to time).
"Mandatory
Cost"
means
the percentage rate per annum calculated in accordance with Schedule 4
(Mandatory
Cost Formulae).
"Margin"
means:
| (a) | subject to paragraphs (c) and (d) below, in relation to any Loan the percentage rate per annum determined pursuant to the table set out below: |
|
Facility
|
Margin
% p.a.
|
|
Facility
A
|
0.325
|
|
Facility
B
|
0.400
|
|
Facility
C
|
0.450
|
| (b) | in relation to any Unpaid Sum the percentage rate
per
annum specified above applicable to the Facility in relation to
which the
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;
|
|
| (c) | if at any time after the First Utilisation Date: |
-
10 -
| (i) | no Default has occurred and is continuing; and | ||
| (ii) | the Net Borrowings to Adjusted EBITDA 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 will (subject, in the case of
Facility A, to paragraph (d) below) be the percentage rate per
annum
set
out below opposite that range:
|
Net
Borrowings to
Adjusted
EBITDA
|
Margin
%
p.a.
|
||
|
Facility
A
|
Facility
B
|
Facility
C
|
|
|
Greater
than 3.0:1
|
0.325
|
0.400
|
0.450
|
|
Less
than or equal to 3.0:1 but greater than 2.5:1
|
0.275
|
0.325
|
0.375
|
|
Less
than or equal to 2.5:1 but greater than 2.0:1
|
0.225
|
0.250
|
0.300
|
|
Less
than or equal to 2.0:1
|
0.150
|
0.200
|
0.250
|
However
any increase or decrease in the Margin shall take effect on the date (the
"reset
date")
which
is five Business Days after receipt by the Agent of the Compliance Certificate
for that Relevant Period pursuant to Clause 21.2
(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. For the purpose of determining the Margin, the Net Borrowings to
Adjusted EBITDA ratio and the Relevant Period shall be determined in accordance
with Clause 22.1
(Financial
definitions):
and
| (d) |
following
the exercise by the Company of the option set out
in Clause 8.1
(First
Term Out Option),
the Margin applicable to any Facility A Term Loan
shall be as set out above provided
that
an
additional 0.05 per cent. per annum shall be added thereto,
payable from
the Initial Facility A Termination
Date.
|
"Material
Adverse Effect"
means a
material adverse effect on:
| (a) |
with
respect to the period prior to the Acquisition of BidCo
Date, the business, condition (financial or otherwise) or operations
of
the Group and BidCo
and its Subsidiaries taken as a whole;
|
|
| (b) |
with
respect to the period from (and including) the
Acquisition of BidCo Date, the business, condition (financial or
otherwise) or operations of the Group,
taken as a whole;
|
-
11 -
| (c) | the rights or remedies of any Finance Party under the Finance Documents; or | |
| (d) | the ability of any Obligor to perform its payment obligations under the Finance Documents. |
"Material
Subsidiary"
means:
| (a) |
BidCo
(but only until such time as the first Compliance
Certificate required to be delivered after the Acquisition of Target
Date
is delivered, unless thereafter
it qualifies pursuant to paragraph (b) below); and
|
|
| (b) | any Subsidiary of the Company which at any time: |
| (i) | has total assets representing 5 per cent. or more of the total consolidated assets of the Group; and/or | ||
| (ii) | has revenues representing 5 per cent. or more of the consolidated turnover of the Group, |
in
each
case calculated on a consolidated basis provided
that
notwithstanding the above no member of the Target Group shall be a Material
Subsidiary prior to the Clean-Up End Date.
If
the
Acquisition of BidCo Date has not occurred but BidCo has become a Guarantor,
then during the period (the "BidCo
Period")
from
the date that BidCo becomes a Guarantor until BidCo first becomes a Subsidiary
of the Company (if such occurs)), the reference to "any Subsidiary of the
Company" in paragraph (b) above shall be deemed to also include a reference
to
any member of the BidCo Group and during the BidCo Period the references to
"the
Group" in sub-paragraphs (b)(i) and (b)(ii) shall be deemed to refer to the
Group and the BidCo Group taken as a whole.
The
Material Subsidiaries (other than BidCo) as at the date of this Agreement are
set out in Schedule 12 (Material
Subsidiaries)
(and
compliance with the conditions set out in paragraph (b) shall be determined
by
reference to such Schedule 12 until delivery of the first Compliance Certificate
required to be delivered hereunder).
Following
delivery of the first Compliance Certificate required to be delivered hereunder,
compliance with the conditions set out in paragraph (b) shall be determined
by
reference to the most recent Compliance Certificate supplied by the Company
and/or the latest audited financial statements of that Subsidiary (consolidated
in the case of a Subsidiary which itself has Subsidiaries) and the latest
audited consolidated financial statements of the Group, but if a Subsidiary
has
been acquired since the date as at which the latest audited consolidated
financial statements of the Group were prepared, the figures contained in the
most recent Compliance Certificate and/or the financial statements shall be
adjusted in order to take into account the acquisition of that Subsidiary (that
adjustment being certified by the Group's auditors as representing an accurate
reflection of each of the respective revised total assets and turnover of the
Group).
A
report
by the auditors of the Company that a Subsidiary is a Material Subsidiary shall,
in the absence of manifest error, be conclusive and binding on all
Parties.
-
12 -
"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 periodis
to end if there is one, or if there is not, on the immediately
preceding
Business Day;
|
|
| (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; and
|
|
| (c) |
if
an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last Business
Day in
the calendar month in
which that Interest Period is to
end.
|
The
above
rules will only apply to the last Month of any period. "Monthly"
shall
be construed accordingly.
"Notarisation"
has the
meaning ascribed to such term in Clause 23.5
(Notarisation).
"New
Lender"
means a
New Lender as specified in a Transfer Certificate.
"NOF"
has the
meaning ascribed to such term in Clause 23.20
(NOF).
"Obligors"
means
the Borrowers and the Guarantors and "Obligor"
means
any of them.
"Offer"
means
the offer made by BidCo, substantially on the terms set out in the Announcement,
to acquire all of the Target Shares (together with the Target ADRs) not already
owned by BidCo, as such offer may from time to time be amended, added to,
revised, renewed or waived as permitted in accordance with the Clause
23.18
(The
Offer).
"Offer
Document"
means
the Bidder's Statement dated 30 October 2006, which included an offer dated
14
November 2006, delivered to the shareholders of the Target by or on behalf
of
BidCo in relation to the Offer.
"Offer
Documents"
means
the Offer Document, the Announcement and any other documents despatched to
the
shareholders of the Target in relation to the Offer by or on behalf of BidCo
(a
copy of which has been provided to the Agent).
"Optional
Currency"
means a
currency (other than the Base Currency) which complies with the conditions
set
out in Clause 4.5
(Conditions
relating to Optional Currencies).
"Original
Financial Statements"
means:
| (a) |
in
relation to the Company, its audited unconsolidated and
consolidated financial statements for its financial year ended
31 December
2005; and
|
|
| (b) | in relation to any other Obligor, its most recent audited annual financial statements. |
"Original
Obligor"
means
the Original Borrower.
-
13 -
"Other
Agreed Offer Facilities"
means
the facilities (other than the Facilities) to be made available (directly or
indirectly) to BidCo for the purpose of funding the Offer being made up, as
at
the date of this Agreement, of the following:
| (a) | a US$1,200,000,000 committed acquisition facility for Cemex Parent dated 24 October 2006; | |
| (b) |
a
US$1,500,000,000 senior bridge facility for New Sunward
Holding B.V. dated on or about the date of this Agreement (and/or,
to the
extent applicable,
the "hybrid" securities issued by a subsidiary of New Sunward Holding
B.V.
in order to refinance the same, in whole or in part);
|
|
| (c) | certain existing syndicated loan facilities of Cemex Parent; and | |
| (d) | any other financing source available to Cemex Parent or any of its Subsidiaries. | |
"Outlook"
means a
rating outlook of the Company with regard to the Company's economic and/or
fundamental business condition, as assigned by a Rating Agency.
"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
Notarisations"
has the
meaning ascribed to such term in Clause 23.5
(Notarisation).
"Permitted
Securitisations"
means a
sale, transfer or other securitisation of receivables and related assets by
the
Company or its Subsidiaries, including a sale at a discount, provided
that
(i) such
receivables have been transferred, directly or indirectly, by the originator
thereof to a person in a manner that satisfies the requirements for an absolute
conveyance under the laws and regulations of the jurisdiction in which such
originator is organised, (ii) at the time the securitisation of receivables
is
put in place the receivables are derecognised from the balance sheet of the
Company or its Subsidiary in accordance with the then applicable GAAP; and
(iii)
except for customary representations, warranties, covenants and indemnities,
such sale, transfer or other securitisation is carried out on a non-recourse
basis or on a basis where recovery is limited solely to the collection of the
relevant receivables.
"Process
Agent"
means
Cemex UK at its registered address (being, as at the date of this Agreement,
Xxxxx Xxxxx, Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx, Xxxxxx XX00 0XX) and with fax
number (x00) 00000 000000, attn: The Secretary.
"Qualifying
Lender"
has the
meaning given to that term in Clause 14
(Tax
gross-up and indemnities).
"Quotation
Day"
means,
in relation to any period for which an interest rate is to be
determined:
| (a) | (if the currency is sterling) the first day of that period; |
-
14 -
| (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).
"Rating"
means
at any time the solicited long term credit rating or the senior implied rating
of the Company or an issue of securities of or guaranteed by the Company, where
the rating is based primarily on the senior unsecured credit risk of the Company
and/or, in the case of the senior implied rating, on the characteristics of
any
particular issue, assigned by a Rating Agency.
"Rating
Agency"
means
Fitch or S&P.
"Reference
Banks"
means
the principal London offices of Citibank International plc, The Royal Bank
of
Scotland plc, Banco Bilbao Vizcaya Argentaria, S.A. and such other banks as
may
be appointed by the Agent in consultation with the Company.
"Relevant
Interbank Market"
means,
in relation to euro, the European interbank market, and, in relation to any
other currency, the London interbank market.
"Relevant
Jurisdiction"
means
in relation to an Obligor:
| (a) | its jurisdiction of incorporation; and | |
| (b) | any jurisdiction where it conducts its business. |
"Relevant
Period"
has the
meaning given to that term in Clause 22
(Financial
Covenants).
"Repeating
Representations"
means
each of the representations set out in Clauses 20.1
(Status)
to Clause 20.6
(Governing
law and enforcement),
Clause
20.9
(No
Default),
Clause
20.11
(Financial
statements),
Clause
20.12
(Pari
passu ranking),
Clause
20.13
(No
proceedings pending or threatened)
and
Clause 20.15
(No
winding-up).
"Rollover
Loan"
means
one or more Facility A Loans (other than a Facility A Term Loan):
| (a) | made or to be made on the same day that a maturing Facility A Loan is due to be repaid; | |
| (b) | the aggregate amount of which is equal to or less than the maturing Facility A Loan; | |
| (c) | in the same currency as the maturing Facility A 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 A Loan. |
"S&P"
means
Standard & Poors Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto from time to time.
-
15 -
"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
the service ceases to be available, the Agent may specify another page or
service displaying the appropriate rate after consultation with the Company
and
the Lenders.
"Second
Term Out Option Termination Date"
means
the date falling 180 days after the First Term Out Option Termination Date
(or
if such date is not a Business Day, the next succeeding Business Day).
"Security"
means a
mortgage, charge, pledge, lien or other security interest securing any
obligation of any person or any other agreement or arrangement having a similar
effect.
"Spain"
means
the Kingdom of Spain.
"Selection
Notice"
means a
notice substantially in the form set out in Part II of Schedule 3 (Requests)
given
in accordance with Clause 11
(Interest
Periods)
in
relation to Facility B or Facility C.
"Spanish
Public Document"
means
any obligation in an Escritura
Pública
or
documento
intervenido.
"Specified
Time"
means a
time determined in accordance with Schedule 8 (Timetables).
"Stake"
means a
number of shares in any Group member held by another Group member the disposal
of which would cause the first Group member to cease to be a Subsidiary of
the
second Group member.
"Subsidiary"
means
in relation to any company or corporation, a company or
corporation:
| (a) | which is controlled, directly or indirectly, by the first mentioned company or corporation; | |
| (b) |
more
than half the issued share capital of which is beneficially owned,
directly or indirectly (by one or more companies or corporations)
by the
first mentioned
company or corporation; or
|
|
| (c) | which is a Subsidiary of another Subsidiary of the first mentioned company or corporation, |
and
for
this purpose, a company or corporation shall be treated as being controlled
by
another if that other company or corporation is able (directly or indirectly)
to
direct its affairs and/or to control the composition of its board of directors
or equivalent body.
"Syndication
Date"
means
the earlier of:
-
16 -
| (a) | the date falling 3 Months after the Unconditional Date; and | |
| (b) | the date on which the Arranger confirms that the primary syndication of the Facilities has been completed. |
"TARGET"
means
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system.
"Target"
means
Xxxxxx Group Limited (ABN 53 003 433 118), a public limited company incorporated
under the laws of Australia and registered in the state of New South Wales
(it
being acknowledged that the name of such company may be changed after the date
of this Agreement).
"TARGET
Day"
means
any day on which TARGET is open for the settlement of payments in
euro.
"Target
ADRs"
means
the American depository receipts which evidence American depository shares
issued by JPMorgan Chase Bank, N.A. in its capacity as the depository of
Target's American depository receipt programme, representing beneficial
interests in five ordinary shares in the Target.
"Target
Group"
means
the Target and its Subsidiaries from time to time.
"Target
Shares"
means
all of the issued and outstanding shares of the Target (including those
represented by the Target ADRs) and options or warrants in relation to such
shares, in each case which are or become the subject of the Offer.
"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).
"Term
Loan"
means
any of a Facility A Term Loan, a Facility B Loan or a Facility C Loan.
"Termination
Date"
means:
| (a) | in relation to Facility A, subject to Clause 8 (Conversion of Facility A), the Initial Facility A Termination Date, | |
| (b) | in relation to Facility B, the day which is 36 Months after the date of this Agreement; and | |
| (c) | in relation to Facility C, the day which is 60 Months after the date of this Agreement; |
or,
| (i) | in the case of paragraph (a), if such day would not be a Business Day, the immediately preceding Business Day; and | |
| (ii) |
in
the case of paragraphs (b) and (c), 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.
|
-
17 -
"Total
Commitments"
means
the aggregate of the Total Facility A Commitments, the Total Facility B
Commitments and the Total Facility C Commitments.
"Total
Facility A Commitments"
means
the aggregate of the Facility A Commitments, being US$3,000,000,000 at the
date
of this Agreement.
"Total
Facility B Commitments"
means
the aggregate of the Facility B Commitments, being US$3,000,000,000 at the
date
of this Agreement.
"Total
Facility C Commitments"
means
the aggregate of the Facility C Commitments, being US$3,000,000,000 at the
date
of this Agreement.
"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 Company.
"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. |
"Unconditional
Date"
means
the date that the Offer is declared unconditional by BidCo.
"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.
"U.S.
Lender"
means
(i) any bank or other financial institution that is organised under the laws
of
the United States (but does not include any branch of a bank organised under
the
laws of the United States where such branch is located outside the United
States) or (ii) any agency or branch of a foreign bank located within the United
States. A financial institution that is not a bank and is controlled, directly
or indirectly, by a person or entity located in or organised under the laws
of
the United States will be deemed to be a U.S. Lender, unless that financial
institution is organised under the laws of a jurisdiction outside the United
States and has its principal office (and any different office directly
administering any Loans or participations therein) outside the United States.
Any proposed Lender or participant that is not a bank will be deemed to be
a
financial institution for purposes of this definition.
"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 (Requests).
"VAT"
means
value added tax as provided for in the Sixth Council Directive of 17 May 1977
on
the harmonization of the laws of the member states of the European Union
relating to turnover taxes - Common system of value added tax : uniform basis
of
assessment (77/388/EEC) and the relevant implementing legislation in member
states of the European Union and any other Tax of a similar nature.
-
18 -
| 1.2 |
Construction
|
|
(a)
|
Unless
a contrary indication appears a reference in this Agreement
to:
|
| (i) |
the
“Agent”,
the “Arranger”,
any “Finance
Party”,
any “Lender”,
any “Obligor”,
any “Party”
or any other person 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 Company
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, novated, supplemented, extended or restated (in each
case,
however fundamentally);
|
||
| (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
“person”
includes any person, firm, company, corporation, government, state
or
agency of a state or any association, trust or
partnership (whether or not having separate legal personality)
of two or
more of the foregoing;
|
||
| (ix) |
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;
|
||
| (x) |
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,
suspensión
de pagos, quiebra, concurso
or
any other
situación
concursal)
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;
|
-
19 -
|
|
(xi) |
a
provision of law is a reference to that provision as amended or
re-enacted
without material modification;
|
|
|
|
(xii) |
a
time of day is a reference to London time; and
|
|
|
|
(xiii) |
a
reference to a clause, paragraph or schedule, unless the context
otherwise
requires, is a reference to a clause of, 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 22
(Financial
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
22
(Financial
Covenants),
there is no breach thereof.
|
| 1.3 |
Currency
Symbols and Definitions
|
"€",
"EUR"
and
"euro"
means
the single currency unit of the Participating Member States and "US$",
"$"
and "US
Dollars"
denote
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)
Xxx
0000 (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.
|
-
20 -
SECTION
2
THE
FACILITIES
| 2. |
THE
FACILITIES
|
| 2.1 |
The
Facilities
|
Subject
to the terms of this Agreement, the Lenders make available:
|
(a)
|
a
364 day multicurrency revolving loan facility with the two term-out
options described in Clause 8
(Conversion
of Facility A)
in an aggregate amount equal to the Total Facility A
Commitments;
|
|
|
(b)
|
a
three year multicurrency term loan facility in an aggregate amount
equal
to the Total Facility B Commitments; and
|
|
|
(c)
|
a
five year multicurrency term loan facility in an aggregate amount
equal to
the Total Facility C Commitments.
|
Finance
Parties’ rights and obligations
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.
|
|
2.3
Affiliate Facility Offices
|
(a)
|
A
Lender may designate an Affiliate of that Lender as its Facility
Office
for the purpose of participating in or making Loans to Borrowers
in
particular countries.
|
|
(b)
|
An
Affiliate of a Lender may be designated for the purposes of paragraph
(a):
|
| (i) |
by
appearing under the name of the Lender in Part II (The
Original Lenders)
of Schedule 1 and executing this Agreement; or
|
||
| (ii) |
by
being referred to in and executing a Transfer Certificate by which
the
Lender becomes a Party.
|
|
(c)
|
An
Affiliate of a Lender referred to in this Clause 2.3
shall not have any Commitment, but shall be entitled to all rights
and
benefits under the Finance Documents relating to its participation
in
Loans, and shall have the corresponding duties of a Lender in relation
thereto, and is a Party to this Agreement and each other relevant
Finance
Document for those purposes.
|
-
21 -
|
(d)
|
A
Lender which has an Affiliate appearing under its name in Part
II
(The
Original Lenders)
of Schedule 1 or, as the case may be, in a Transfer Certificate,
will
procure, subject to the terms of this Agreement, that the Affiliate
participates in Loans to the relevant Borrower(s) in place of that
Lender.
However, if as a result of the Affiliate’s participation, an Obligor would
be obliged to make a payment to the Affiliate under Clause 24
(Tax
Gross-up and indemnities)
or Clause 15
(Increased
costs),
then the Affiliate is only entitled to receive payment under those
clauses
to the same extent as the Lender (designating such Affiliate) would
have
been if the Lender had not designated such Affiliate for the purposes
of
paragraph (a) above.
|
| 3. |
PURPOSE
|
| 3.1 |
Purpose
|
The
Borrower shall (directly or indirectly) apply all amounts borrowed by it under
the Facilities towards:
|
(a)
|
financing
the consideration payable by BidCo for:
|
| (i) |
the
Target Shares to be acquired under the
Offer;
|
||
| (ii) |
the
Target ADRs to be acquired under the Offer (in accordance with
the
applicable United States of America securities laws and
regulations); and
|
||
| (iii) |
the
Target Shares (if any) acquired under the compulsory
acquisition procedures set out in Part 6A.1 of the Corporations
Act;
|
|
(b)
|
(if
required) financing the consideration payable to holders
of options to acquire Target Shares pursuant to any proposal in
respect of
those options as required by the Corporations Act or other relevant
Australian companies law or in accordance with the constitution
of Target
or pursuant to any resolution of the board of directors of Target
or any
relevant pension or employment benefit plan
administrators;
|
|
|
(c)
|
financing
the payment of costs, fees, expenses (and Taxes on them) and stamp
duty,
registration and other similar Taxes incurred by BidCo and any
member of
the Group in relation to the Offer and/or the Finance Documents
(but not,
for the avoidance of doubt, including fees payable to the M&A Advisor
by Cemex Parent or any of its Subsidiaries in connection with the
Offer);
and
|
|
| (d) |
(if
required or if the Company deems it necessary) financing or refinancing
the Existing Target
Debt.
|
| 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
Company 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)
in form
and substance satisfactory to the Arranger, acting reasonably. The Arranger
shall notify the Agent, who shall promptly notify the Company and the Lenders,
that they are so satisfied.
-
22 -
| 4.2 |
Funds
Flow Statement and Group Structure
Chart
|
With
regard to the Funds Flow Statement and Group Structure Chart required to be
received by the Agent pursuant to Clause 4.1
(Initial
Conditions Precedent),
the
Arranger confirms that provided the final forms of such documents:
|
(a)
|
are substantially the same as the indicative funds flow statement and group structure chart (the "Indicative Documents") delivered to the Arranger by the Company on or prior to the date of this Agreement and initialled by the Arranger and the Company (or with such changes as noted thereon); or |
| (b) | contain no changes to the terms of the Indicative Documents that are materially adverse to the interests of the Finance Parties, |
then
such
Funds Flow Statement and Group Structure Chart shall be in form and substance
satisfactory to the Arranger.
| 4.3 |
Further
Conditions Precedent
|
Subject
to the provisions of Clause 4.4
(Certain
Funds),
the
Lenders will only be obliged to comply with Clause 5.5
(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 20.21
(Times
on which representations are made)
are true in all material respects.
|
| 4.4 |
Certain
Funds
|
Notwithstanding
any term of the Finance Documents (other than Clause 3.1
(Purpose)
and
9.2
(Change
of control)),
each
Finance Party agrees that during the Certain Funds Period, the Finance Parties
shall not:
|
(a)
|
be
entitled to refuse to participate in or make available any Acquisition
Utilisation, whether by cancellation, rescission or termination
or similar
right or remedy (whether under the Finance Documents or under
any
applicable law) which it may have in relation to an Acquisition
Utilisation (including by invoking any conditions set out in
Clause
4.1
in
respect of compliance with sub-paragraphs 4(a) and (b), 5(d)
and 6(b) of
Part I of Schedule 2, and Clause 4.3
(Further
Conditions Precedent));
|
| (b) |
make
or enforce any claims they may have under the Finance Documents
if the
effect of such claim or enforcement would be to prevent or limit
the
making of any Acquisition Utilisation during the Certain Funds
Period;
|
| (c) | otherwise exercise any right of set-off or counterclaim or similar right or remedy if to do so would prevent or limit the making of any Acquisition Utilisation; or |
-
23 -
|
(d)
|
cancel,
accelerate or cause repayment or prepayment of any Facility or
other
amounts owing under the Finance Documents if to do so would prevent
or
limit the making of any Acquisition Utilisation,
|
in
each case unless (a) a Certain Funds Default has occurred and
is continuing or would result from the making of an Acquisition Utilisation,
(b)
a Certain Funds Representation is incorrect or misleading when made or deemed
to
be made or (c) a Lender is entitled to do so by virtue of the provisions
of
Clause 9.1
(Illegality
of a Lender)
provided
that
immediately upon the expiry of the Certain Funds Period all such rights,
remedies and entitlements shall be available to the Lenders (subject to Clause
24.17
(Clean
Up Period))
notwithstanding that they may not have been used or been available for use
during the Certain Funds Period.
| 4.5 |
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 at the
Specified Time or, if later, on the date the Agent receives the
relevant
Utilisation Request and the Utilisation Date for that Utilisation;
and
|
||
| (ii) |
it
is in euro 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 or Selection Notice for that
Utilisation.
|
| (b) |
The
Lenders will only be obliged to comply with Clause 30.9
(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 as at that date are true in all material
respects.
|
|
| (c) |
If
the Agent has received a written request from the Company for a
currency
to be approved under paragraph (a)(ii) above, the Agent will confirm
to
the Company 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.
|
| 4.6 |
Maximum
number of Loans
|
|
(a)
|
The
Company may not deliver a Utilisation Request if as a result
of the
proposed Utilisation:
|
| (i) |
10 or more Facility A Loans would be outstanding;
or
|
||
| (ii) |
10 or more Facility B Loans would be outstanding; or
|
||
| (iii) |
10 or more Facility C Loans would be
outstanding.
|
| (b) |
Any
Loan made by a single Lender under Clause 6.2
(Unavailability
of a currency)
shall not be taken into account in this Clause 4.6.
|
-
24 -
| (c) |
The
Borrower may not request that a Loan be divided if as a result of
the
proposed division 10 or more Loans under the same Facility would
be
outstanding.
|
-
25 -
SECTION
3
UTILISATION
| 5. |
UTILISATION
|
| 5.1 |
Delivery
of a Utilisation Request
|
The
Company 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 comply with Clause 5.3
(Currency
and amount);
|
||
| (iv) |
the
proposed Interest Period complies with Clause 11
(Interest
Periods);
and
|
||
| (v) |
in requesting a Utilisation of a Facility the Borrower is and
will be
(once such Utilisation is made), in compliance with Clause 5.4
(Pro
rata drawings).
|
| (b) |
A
single Utilisation Request may be given in respect of a maximum
of three
Loans being one Loan under each
Facility.
|
| 5.3 |
Currency
and amount
|
| (a) |
The
currency specified in a Utilisation Request must be the Base
Currency or
an Optional Currency.
|
|
| (b) |
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$25,000,000 (and equal to such amount or an integral multiple
of US$10,000,000
in excess thereof) or, if less, the relevant Available Facility;
or
|
||
| (ii) |
if
the currency selected is euro, a minimum of EUR25,000,000
(and equal to such amount or an integral multiple of
EUR10,000,000 in excess thereof) or, if less, the relevant Available
Facility; or
|
||
| (iii) |
if
the currency selected is an Optional Currency other than
euro the minimum amount specified by the Agent pursuant to paragraph
(c) (ii) of Clause 4.5
(Conditions
relating to Optional Currencies)
or, if less, the relevant Available Facility, provided
that
such minimum amounts shall not apply where the proposed Utilisation
is for
the purpose of refinancing a maturing Loan in another currency
and the
relevant Utilisation Request instructs that proceeds shall be applied
directly in such
refinancing.
|
-
26 -
| 5.4 |
Pro
rata
drawings
|
Utilisations
of the Facilities shall be made across each of the three Facilities pro
rata
to the
Available Facility of each Facility.
It
is
acknowledged by the Parties that, due to the other provisions of this Agreement,
the outstanding Utilisations under this Agreement may, at any particular time,
not be split pro
rata across
the three Facilities.
| 5.5 |
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
|
| (a) |
The
Borrower shall select the currency of a
Loan:
|
|
|
(i) |
(in
the case of an initial Utilisation) in a Utilisation Request;
and
|
|
| (ii) |
(afterwards
in relation to a Term Loan made to it) in a Selection
Notice,
|
| (b) |
If
the Borrower fails to issue a Selection Notice in relation to a
Loan, the
Loan will remain denominated for its next Interest Period in the
same
currency in which it is then
outstanding.
|
If
the
Borrower issues a Selection Notice requesting a change of currency and the
first
day of the requested Interest Period is not a Business Day for the new currency,
the Agent shall promptly notify the Borrower and the Lenders and the Loan will
remain in the then existing currency (with Interest Periods running from one
Business Day until the next Business Day) until the next day which is a Business
Day for both currencies, on which day the requested Interest Period will
begin.
| 6.2 |
Unavailability
of a currency
|
If
before
the Specified Time on any Quotation Day:
-
27 -
| (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 Company 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 |
Change
of currency
|
| (a) |
If
a Term Loan is to be denominated in different currencies
during two
successive Interest
Periods:
|
| (i) |
if
the currency for the second Interest Period is an Optional Currency,
the
amount of the Term Loan in that Optional Currency will
be calculated by the Agent as the amount of that Optional Currency
equal
to the Base Currency Amount of the Term Loan at
the Agent's Spot Rate of Exchange at the Specified
Time;
|
||
| (ii) |
if
the currency for the second Interest Period is the Base Currency,
the
amount of the Term Loan will be equal to the Base Currency
Amount;
|
||
| (iii) |
(unless
the Agent and the Borrower agree otherwise in accordance with
paragraph
(b) below) the Borrower shall repay the Term
Loan on the last day of the first Interest Period in the currency
in which
it was denominated for that Interest Period; and
|
||
| (iv) |
(provided
that
no
Event of Default has occurred which is continuing) the Lenders
shall
re-advance the Term Loan in the new currency
in accordance with Clause 6.5
(Agent's
calculations).
|
| (b) |
If
the Agent and the Borrower agree (and it is acknowledged that
the Agent
may require an indemnity in respect of foreign exchange losses
which may
be suffered by it in connection with the performance of its functions
under this Clause from the Company in order for it to so agree),
the Agent
shall:
|
| (i) |
apply
the amount paid to it by the Lenders pursuant to paragraph (a)(iv)
above
(or so much of that amount as is necessary) in
or
towards purchase of an amount in the currency in which the Term
Loan is
outstanding for the first Interest Period;
and
|
-
28 -
| (ii) |
use
the amount it purchases in or towards satisfaction of the Borrower's
obligations under paragraph (a)(iii) above.
|
| (c) |
If
the amount purchased by the Agent pursuant to paragraph (b)(i)
above is
less than the amount required to be repaid by the Borrower, the
Agent
shall promptly notify the Borrower and the Borrower shall, on
the last day
of the first Interest Period, pay an amount to the Agent (in
the currency
of the outstanding Term Loan for the first Interest Period) equal
to the
difference.
|
|
| (d) |
If
any part of the amount paid to the Agent by the Lenders pursuant
to
paragraph (a)(iv) above is not needed to purchase the amount
required to
be repaid by the Borrower, the Agent shall promptly notify the
Borrower
and pay the Borrower, on the last day of the first Interest Period
that
part of that amount (in the new
currency). |
| 6.4 |
Same
Optional Currency during successive Interest
Periods
|
| (a) |
If
a Term Loan is to be denominated in the same Optional Currency
during two
successive Interest Periods, the Agent shall calculate the amount
of the
Term Loan in the Optional Currency for the second of those Interest
Periods (by calculating the amount of Optional Currency equal
to the Base
Currency Amount of that Loan at the Agent's Spot Rate of Exchange
at the
Specified Time) and (subject to paragraph (b)
below):
|
| (i) |
if
the amount calculated is less than the existing amount of that
Loan in the
Optional Currency during the first Interest Period, promptly
notify the Borrower and the Borrower shall pay, on the last day
of the
first Interest Period, an amount equal to the difference;
or
|
||
| (ii) |
if
the amount calculated is more than the existing amount of that
Loan in the
Optional Currency during the first Interest Period, promptly
notify each Lender and, if no Event of Default is continuing, each
Lender
shall, on the last day of the first Interest Period, pay
its participation in an amount equal to the
difference.
|
| (b) |
If
the calculation made by the Agent pursuant to paragraph (a) above
shows
that the amount of the Loan in the Optional Currency for the second
of
those Interest Periods converted into the Base Currency at the
Agent's
Spot Rate of Exchange at the Specified Time has increased or decreased
by
less than 5 per cent. compared to its Base Currency Amount (taking
into
account any payments made pursuant to paragraph (a) above), no
notification shall be made by the Agent and no payment shall be
required
under paragraph (a) above.
|
| 6.5 |
Agent's
calculations
|
| (a) |
All
calculations made by the Agent pursuant to this Clause
6.5
will take into account any repayment, prepayment, consolidation
or
division of Loans to be made on the last day of the first Interest
Period.
|
|
| (b) |
Each
Lender's participation in a Loan will, subject to paragraph (a)
above, be
determined in accordance with paragraph (b) of Clause 5.5
(Lenders'
participation).
|
-
29 -
SECTION
4
REPAYMENT,
PREPAYMENT AND CANCELLATION
| 7. |
REPAYMENT
|
| 7.1 |
Repayment
of Facility A Loans
|
Subject
to Clause 8
(Conversion
of Facility A),
the
Borrowers shall repay each Facility A Loan on the last day of its Interest
Period. If such Loan is to be refinanced with a Rollover Loan, the amount of
each Facility A Loan required to be repaid shall be set off against the amount
of the applicable Rollover Loan. All Facility A Loans shall be repaid on, or
prior to, the Termination Date relating thereto.
| 7.2 |
Repayment
of Facility B Loans and Facility C
Loans
|
| (a) |
The Borrowers under Facility B shall repay the aggregate
Facility B
Loans in full on the Termination Date in respect of Facility
B.
|
|
| (b) |
The
Borrowers under Facility C shall repay the aggregate Facility
C Loans in
full on the Termination Date in respect of Facility
C.
|
| 8. |
CONVERSION
OF FACILITY A
|
| 8.1 |
First
Term Out Option
|
| (a) |
The Company shall be entitled to request
that:
|
| (i) |
all
or part (being an amount in accordance with Clause 5.3
(Currency
and amount))
of the amount of each Facility A Loan
(pro
rata
amongst the Lenders of such Facilty A Loan) forming part of
a Utilisation
and outstanding on the Initial Facility A
Termination Date be converted on the Initial Facility A Termination
Date
into a term loan maturing on the First Term Out Option
Termination Date; and
|
||
| (ii) |
all
or part of the Facility A Commitments (being an amount in accordance
with
Clause 5.3
(Currency
and amount))
which have not
been drawn down prior to the Initial Facility A Termination Date
be drawn
down by way of Facility A Term Loans by a Borrower
on the Initial Facility A Termination
Date,
|
by
delivering to the Agent a Conversion Request not less than 5 Business Days
nor
more than 30 days prior to the Initial Facility A Termination Date.
| (b) |
Any outstanding Facility A Loans not requested to be so converted
shall be repaid in full on the Initial Facility A Termination
Date.
|
|
| (c) |
If:
|
| (i) |
the Borrower has delivered a Conversion Request under paragraph
(a)
of this Clause 8.1;
and
|
||
| (ii) |
the conditions in Clauses 4.3
(Further
Conditions Precedent)
would have been met if the Facility A Loan to be converted had
been
a new Facility A Loan and are met in respect of any new Facility
A Term
Loan to be drawn down),
|
-
30 -
| then: |
|
||
| (A) |
all
or the part of each Facility A Loan which is specified in the Conversion
Request and is outstanding on the Initial Facility A Termination
Date (equal to the amount specified in the Conversion Request as
being
requested to be converted) shall automatically
be converted into a term loan in the currency in which the relevant
outstanding Facility A Loan is denominated at the
time of the Conversion Request and shall not be repayable on the
Initial
Facility A Termination Date pursuant to Clause 7.1
(Repayment
of Facility A Loans)
but shall instead be repayable in full on the First Term Out Option
Termination Date; and
|
||
| (B) |
a
Facility A Term Loan (equal to the amount specified in the
Conversion Request as being the amount of the undrawn Facility A
Commitments to be drawn down by way of Facility A Term Loans in accordance
with Clause 8.1(a)(ii)
above) shall be made to the
relevant Borrower on the Initial Facility A Termination Date and
shall not
be repayable pursuant to Clause 7.1
(Repayment
of
Facility A Loans)
but shall instead be repayable in full on the First Term Out Option
Termination Date.
|
| 8.2 |
Second
Term Out Option
|
| (a) |
The
Company shall be entitled to request that, following a conversion
and/or
draw down in accordance with Clause 8.1
(First
Term Out Option),
the final date for repayment of all or part (being an amount
in accordance
with Clause 5.3
(Currency
and amount))
of the amount of the Facility A Term Loan(s) (pro
rata
amongst the Lenders) be extended to the Second Term Out Option
Termination
Date, by delivering to the Agent a Conversion Request, not less
than 5
Business Days nor more than 30 days prior to the First Term Out
Option
Termination Date.
|
|
| (b) |
Any
amount of the Facility A Term Loan(s) outstanding on the First
Term Out
Option Termination Date which is not the subject of a Conversion
Request
pursuant to paragraph (a) of this Clause 8.2
shall be repaid in full on the First Term Out Option Termination
Date.
|
|
| (c) |
If:
|
| (i) |
the
Borrower has delivered a Conversion Request under paragraph (a) of
this
Clause 8.2;
and
|
||
| (ii) |
the
conditions in Clauses 4.3
(Further
Conditions Precedent)
would have been met if the Facility A Term Loan(s) to be extended
had been a new Facility A Loan(s),
|
then
all
or the part of each Facility A Term Loan which is specified in the Conversion
Request and is outstanding on the First Term Out Option Termination Date (equal
to the amount specified in the Conversion Request as being requested to be
extended) shall not be repayable on the First Term Out Option Termination Date
pursuant to Clause 8.1
(First
Term Out Option)
but
shall instead be repayable in full on the Second Term Out Option Termination
Date.
-
31 -
| 8.3 |
Conversion
Requests and Interest
|
| (a) |
Each
Conversion Request shall, once delivered, be
unconditional and irrevocable.
|
|
| (b) |
The
Agent shall forward a copy of any Conversion Request to each
Lender as
soon as practicable after receipt.
|
|
| (c) |
The
first Interest Period for a Facility A Term Loan shall commence
on the
Initial Facility A Termination Date, and shall be of a duration
determined
in accordance with Clause 11
(Interest
Periods) provided
that
such Interest Period shall end on the First Term Out Option Termination
Date. Where a Conversion Request has been delivered pursuant
to paragraph
(a) of Clause 8.2
(Second
Term Out Option),
no Interest Period for a Facility A Term Loan may extend beyond
the Second
Term Out Option Termination
Date.
|
| 9. |
PREPAYMENT
AND CANCELLATION
|
| 9.1 |
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
(specifying the reason for such unlawfulness and the date on
which such
unlawfulness occurred or will occur, being no earlier than
the last day of
any applicable grace period permitted by law (the "Relevant
Date"))
and, in any event, at a time which permits the Company to repay
that
Lender's participation on the date such repayment is required
to be
made;
|
|
| (b) |
upon the Agent notifying the Company, the Commitment of that
Lender
will be immediately cancelled; and
|
|
| (c) |
the
Company shall, on the last day of the Interest Period for each
Loan ending
immediately prior to the Relevant Date and occurring after the
Agent has
notified the Company or, if earlier, the Relevant Date, repay
that
Lender's participation in the Loans together with accrued interest
and all
other amounts owing to that Lender under the Finance
Documents.
|
| 9.2 |
Change
of Control
|
| (a) |
In
this Clause 9.2
a
"Change
of Control"
occurs if:
|
| (i) |
Cemex Parent ceases to:
|
| (A) | be entitled to (whether by way of ownership of shares (directly or indirectly), proxy, contract, agency or otherwise): |
-
32 -
| (1) | cast, or control the casting of, at least 51 per cent. of the maximum number of votes that might be cast at a general meeting of the Company; | ||||
| (2) |
appoint
or remove all, or the majority, of the directors or
other equivalent officers of the Company; or
|
||||
| (3) |
give
directions with respect to the operating and financial
policies of the Company which the directors or other equivalent
officers of the Company are obliged to comply with;
or
|
| (B) | hold at least 51 per cent. of the common shares in the Company; |
| (ii) |
prior
to the earlier of (a) the Acquisition of BidCo Date,
and (b) the date on which BidCo becomes a Guarantor, BidCo ceases
to be a
Subsidiary of Cemex Parent (unless prior to or simultaneously
with BidCo
ceasing to be a Subsidiary of Cemex Parent, all or substantially all
of the assets of BidCo have been or are sold to a member of the
Group);
or
|
||
| (iii) |
prior
to the earlier of (a) the Acquisition of BidCo Date, and (b)
the date on
which BidCo becomes a Guarantor, Target ceases
to
be a member of the BidCo Group or the
Group.
|
| (b) |
Upon the occurrence of a Change of Control (and notwithstanding
any
other term of this Agreement) each Lender:
|
| (i) |
shall be under no obligation to fund its share of any proposed
Utilisation after such date;
|
||
| (ii) |
may
by three Business Days' notice to the Agent, cancel all
of its Available Commitments (in which case they shall be so
cancelled);
and
|
||
| (iii) |
may
by three Business Days' notice to the Agent, require that its
share of all
outstanding Loans, together with accrued interest,
and all other amounts accrued under the Finance Documents, shall
become
immediately due and payable (in which
case it shall so
become).
|
| 9.3 |
Voluntary
cancellation
|
The
Company may, if it gives the Agent not less than three Business Days' (or such
shorter period as the Majority Lenders may agree) prior notice, cancel the
whole
or any part (being a minimum amount of US$25,000,000) of any Facility. Any
cancellation under this Clause 9.3
shall
reduce rateably the Commitments of the Lenders under that Facility.
| 9.4 |
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.
-
33 -
| 9.5 |
Voluntary
prepayment of Loans
|
| (a) |
A
Borrower may, if the Company gives the Agent not less than
three Business Days' (or such shorter period as the Majority
Lenders 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$25,000,000).
|
|
| (b) |
A Loan may be voluntarily prepaid at any
time.
|
| 9.6 |
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 14.2
(Tax
gross-up);
or
|
||
| (ii) | any Lender claims indemnification from an Obligor under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased costs), |
the
Company 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 Company
has
given notice under paragraph (a) above (or, if earlier, the date
specified
by the Company in that notice), each Borrower shall repay that
Lender’s
participation in the Loans to which such Interest Period
relates.
|
| 9.7 |
Mandatory
Prepayment from Target Disposal
Proceeds
|
|
(a)
|
In
this Clause 9.7:
|
|
|
“Asset
Disposal Proceeds”
means the cash consideration received by any member of Target Group,
by
any member of the BidCo Group or by Cemex Parent or any of its
Subsidiaries (including any amount receivable in repayment of intercompany
debt) for any Disposal of BidCo, Target or any of its or their
assets
which takes place at any time prior to the earlier of (i) the Acquisition
of BidCo Date and (ii) the date on which BidCo becomes a Guarantor
(except
in respect of any Excluded Asset Disposal Proceeds) after
deducting:
|
| (i) |
any
expenses which are incurred by the disposing party of such assets
with
respect to that disposing party of such assets with respect to
that
Disposal owing to persons who are not members of the relevant Group;
and
|
||
| (ii) |
any
Tax incurred and required to be paid by the disposing party in
connection
with that Disposal (as reasonably determined by the disposal party
on the
basis of rates existing at the time of the disposal and taking
account of
any available credit, deduction or
allowance.
|
-
34 -
"Disposal"
means a
sale, lease, licence, transfer, loan or other disposal by a person of any asset,
undertaking or business (whether by a voluntary or involuntary single
transaction or series of transactions).
"Excluded
Asset Disposal Proceeds"
means:
| (i) |
any
proceeds of any Disposal of BidCo, Target, any Subsidiary of Target,
or
any of its or their assets to another member of the BidCo Group,
the
Company or any member of the Group;
|
||
| (ii) |
any
proceeds of a Disposal made by any member of the Target Group which
takes
place after the Acquisition of Target Date where the Company notifies
the
Agent that any cash amount of such proceeds are, or are to be,
applied in
repayment or prepayment of Existing Target Debt, provided
that any
cash amount of such proceeds are so applied as soon as reasonably
practicable (but in any event within 45 days, or such longer period
as is
equal to the notice period required to be given for voluntary prepayments
under the documentation evidencing the relevant Existing Target
Debt)
after receipt; and
|
||
| (iii) |
any
proceeds of a Disposal made after the Acquisition of
Target Date where such proceeds are in an amount of less than
US$25,000,000 (but only to the extent that the aggregate amount
of such
proceeds in any financial year of the Company does not exceed
US$100,000,000).
|
"Excluded
Target Disposal Proceeds"
means:
| (i) |
any
proceeds of a Disposal made by any member of the Target Group
which takes
place after the Acquisition of Target Date where the Company
notifies the
Agent that any cash amount of such proceeds are, or are to be,
applied in
repayment or prepayment of Existing Target Debt, provided
that any
cash amount of such proceeds are so applied as soon as reasonably
practicable (but in any event within 45 days, or such longer
period as is
equal to the notice period required to be given for voluntary
prepayments
under the documentation evidencing the relevant Existing Target
Debt)
after receipt;
|
||
| (ii) |
any
proceeds of a Disposal made by any member of the Target Group
after the
earlier of (i) the Acquisition of BidCo Date and (ii) the date
on which
BidCo becomes a Guarantor, where the acquiring entity is a member
of the
Group or the BidCo Group;
|
||
| (iii) |
any
proceeds of a Disposal made after the earlier of (i) the Acquisition
of
BidCo Date and (ii) the date on which BidCo becomes a Guarantor,
pursuant
to a Permitted Securitisation; and
|
||
| (iv) |
any
proceeds of a Disposal made after the Acquisition of Target Date
where
such proceeds are in an amount of less than US$25,000,000 (but
only to the
extent that the aggregate amount of such proceeds (together with
any
proceeds referred to in paragraph (iii) of the definition of
Excluded
Asset Disposal Proceeds where such proceeds are realised in the
same
financial year) in any financial year of the Company does not
exceed
US$100,000,000).
|
-
35 -
"Target
Disposal Proceeds"
means
the cash consideration received by any member of the Target Group (including
any
amount receivable in repayment of intercompany debt) for any Disposal made
by
any member of the Target Group which takes place after (but including) the
earlier of (i) the Acquisition of BidCo Date and (ii) the date on which BidCo
becomes a Guarantor (except for Excluded Target Disposal Proceeds) after
deducting:
|
(i)
any
expenses which are incurred by any member of the Target Group with
respect
to that Disposal owing to persons who are not members of the Group;
and
|
|
|
(ii)
any
Tax incurred and required to be paid by the disposing party in
connection
with that Disposal (as reasonably determined by the disposing party,
on
the basis of rates existing at the time of the Disposal and taking
account
of any available credit, deduction or allowance).
|
|
| (b) |
The Company shall ensure that the Borrowers prepay any outstanding
Facility A Loans in the amount of (aa) any Target Disposal Proceeds
and
(bb) any Asset Disposal Proceeds. Such prepayment shall occur
either:
|
|
(i) at
the Company's election and provided
that
there is no Event of Default continuing, at the end of the then
current
Interest
Period for the relevant Facility A Loans (or, but only in respect
of any
Asset Disposal Proceeds, if the then current Interest
Period for the relevant Facility A Loans ends within 30 days of
the date
of the receipt of those proceeds, the end of the
following Interest Period); or
|
|
|
(ii) reasonably promptly upon receipt of those
proceeds but in any case within 30 days of receipt of such proceeds
(or,
if sooner, at
the end of the then
current Interest Period for the relevant Facility A Loans).
|
|
| (c) |
The
Company shall (i) ensure that any Excluded Target Disposal Proceeds
and
any Excluded Asset Disposal Proceeds are applied for the purpose
and
within the required period specified in the definition thereof
and, if
requested to do so by the Agent, shall promptly deliver a certificate
to
the Agent at the time of such application and at the end of such
period
confirming the amount (if any) which has been so applied within
the
requisite time periods provided for in that definition and (ii)
if
requested to do so by the Agent, promptly deliver a certificate
to the
Agent confirming any Disposal that has given rise to any Excluded
Asset
Disposal Proceeds and setting out reasonable details of the relevant
Disposal. |
| 9.8 |
Mandatory
Prepayment from
Fundraisings
|
| (a) |
In this Clause 9.8:
|
| "Excluded Fundraisings" means: |
-
36 -
|
(i)
any
bank loans;
|
|
|
(ii) any
transaction or any part of any transaction which is between entities
in
the Group or entities whose ultimate parent company
is
Cemex Parent;
|
|
|
(iii) Permitted
Securitisations; and
|
|
|
(iv) any
issue of "hybrid" or "perpetual" bonds, notes or other securities
which
are not required to be recorded as a liability on the
balance sheet of the issuing company and which are accounted for
as 100
per cent. equity, in each case, in accordance with
applicable GAAP in effect as at the date of such issue and which
by their
terms are stated only to be repayable only after the
Facilities have been repaid in full (or are otherwise subordinated
on
terms satisfactory to the Majority
Lenders).
|
"Fundraisings"
means
the net cash proceeds received by any member of the Group from: (i) any issue
of
shares for cash or cash equivalent
proceeds by the Company; and (ii) the issue of any bonds, notes or other debt
securities by any member of the Group on the
capital markets.
| (b) |
The
Company shall ensure that the Borrowers prepay the outstanding
Facility A
Loans in the amount of any Fundraisings (other than Excluded
Fundraisings). Such prepayment shall occur either:
|
|
(i) at the Company's election and provided
that
there is no Event of Default continuing, at the end of the then
current
Interest
Period for the relevant Facility A Loans; or
|
|
|
(ii) reasonably promptly upon receipt of
those proceeds but in any case within 30 days of receipt of such
proceeds
(or, if sooner,
at the end of the then
current Interest Period for the relevant Facility A
Loans).
|
| 9.9 |
Restrictions
|
| (a) |
Any
notice of cancellation or prepayment given by any Party
under this Clause
9
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
(if any),
without premium or penalty.
|
| (c) |
Unless
a contrary indication appears in this Agreement (and, in particular,
subject to paragraph (d) below), any part of Facility A, Facility
B or
Facility C which is prepaid may not be re-borrowed in accordance
with the
terms of this Agreement.
|
| (d) |
Prior
to the Initial Facility A Termination Date only, the Borrowers
may
re-borrow those parts of Facility A that have been voluntarily
prepaid
pursuant to Clause 9.5
(Voluntary
prepayment of Loans). |
-
37 -
| (e) |
No
Borrower shall 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 9
it
shall promptly forward a copy of that notice to either the relevant
Borrower or the affected Lenders, as
appropriate.
|
-
38 -
SECTION
5
COSTS
OF UTILISATION
| 10. |
INTEREST
|
| 10.1 |
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.
| 10.2 |
Payment
of interest
|
On
the
last day of each Interest Period relating to a Loan each 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).
| 10.3 |
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 10.3
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.
| 10.4 |
Notification
of rates of interest
|
The
Agent
shall promptly notify the Lenders and the relevant Borrower of the determination
of a rate of interest under this Agreement.
-
39 -
| 11. |
INTEREST
PERIODS
|
| 11.1 |
Selection
of Interest Periods
|
(a) The
Company may select an Interest Period for a Loan in the Utilisation Request
for
that Loan or (if the Loan has already been borrowed) in a
Selection Notice.
(b) Each
Selection Notice for a Loan 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 11,
the
Company may select an Interest Period of one, two, three or six Months, or
any
other period agreed between the
Company 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 the Facility under which the Loan was made.
(f) Each
Interest Period for a Loan shall start on the Utilisation Date or (if already
made) on the last day of its preceding Interest Period.
(g) A
Facility A Loan (other than a Facility A Term Loan) has one Interest Period
only.
(h) Prior
to
the Syndication Date, Interest Periods shall be one month or such other period
as the Agent and the Company may agree and any Interest
Period which would otherwise end during the month preceding or extend beyond
the
Syndication Date shall end on the Syndication Date.
| 11.2 |
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).
| 11.3 |
Consolidation
and division of Loans
|
(a)
Subject
to paragraph (b) below, if two or more Interest Periods:
(i) relate
to
either Facility A Term Loans, Facility B Loans or Facility C Loans in the same
currency; and
(ii) end
on
the same date;
those Loans will, unless the Borrower specifies to the contrary in the Selection
Notice for the next Interest Period, be consolidated into, and
treated
as, a single Loan on the last day of the Interest Period.
(b) Subject
to Clause 4.6
(Maximum
number of Loans)
and
Clause 5.3
(Currency
and amount),
if the
Borrower requests in a Selection Notice that a
Loan be divided into two or more Loans, that 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 Loan immediately before
its
division.
-
40 -
| 12. |
CHANGES
TO THE CALCULATION OF
INTEREST
|
| 12.1 |
Absence
of quotations
|
Subject
to Clause 12.2
(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.
| 12.2 |
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 London 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.
| 12.3 |
Alternative
basis of interest or
funding
|
(a) If
a
Market Disruption Event occurs and the Agent or the Company so requires, the
Agent and the Company 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
Company, be binding on all Parties.
-
41 -
| 12.4 |
Break
Costs
|
(a)
Each
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 that 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.
| 13. |
FEES
|
| 13.1 |
Ticking
fee
|
(a) The
Company shall pay to the Agent (for the account of each Lender) a ticking fee
in
respect of each Facility in the Base Currency computed at the
rate of:
(i)
0.05
per
cent. per annum on that Lender's Available Commitment under each Facility for
the period commencing on the date falling 60 days
after 26 October 2006 and ending on (but excluding) the date falling three
Months thereafter; and
(ii) 0.075
per
cent. per annum on that Lender's Available Commitment under each Facility for
the period commencing on last day of the period
referred to in paragraph (i) and ending on the last day of the
Availability Period applicable to that Facility,
provided that the
ticking fee shall cease to accrue from the First Utilisation Date or, if
earlier, the date on which the Available Commitments of each
Lender under each Facility is cancelled and reduced to zero.
(b) The
accrued ticking fees set out above are payable on the First Utilisation Date
or,
if all or part of the Facilities are cancelled, on the cancelled
amount
of the relevant Lender's Commitment at the time the cancellation is
effective.
| 13.2 |
Commitment
fee
|
(a) The
Company shall pay to the Agent (for the account of each Lender) a commitment
fee
in respect of each Facility in the Base Currency computed at
the rate of 30 per cent. per annum of the applicable Margin from time to
time on that Lender's Available Commitment under each Facility for the
period
commencing on the First Utilisation Date and ending on the last day of the
Availability Period applicable to that Facility or, if earlier, the date on
which
the Available Commitments of each Lender under a particular Facility is
cancelled and reduced to zero.
(b)
The
accrued commitment fees set out above 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.
-
42 -
| 13.3 |
Up-front
Fee
|
The
Company shall pay to the relevant Finance Parties an up-front fee in the amount
and at the times agreed in the relevant Fee Letter.
| 13.4 |
Agency
fee
|
The
Company 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 relevant Fee
Letter.
| 13.5 |
Second
Term Out Option Fee
|
If
the
option set out in Clause 8.2
(Second
Term Out Option)
is
exercised, the Company shall pay to the Agent (for the account of each relevant
Lender under the Facility A Term Loan(s) pro
rata
to its
share therein) a second term out option fee in an amount equal to 0.05 per
cent.
flat on the amount of each Facility A Term Loan which is subject to an extension
of its final maturity pursuant to Clause 8.2
(Second
Term Out Option).
Such
conversion fee shall be payable by the Company to the Agent on the First Term
Out Option Termination Date.
-
43 -
SECTION
6
ADDITIONAL
PAYMENT OBLIGATIONS
| 14. |
TAX
GROSS-UP AND INDEMNITIES
|
| 14.1 |
Definitions
|
(a)
In
this
Clause 14:
"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.
"Qualifying
Lender"
means a
Lender which is beneficially entitled to interest payable to that Lender in
respect of an advance under a Finance Document and is:
|
(i)
|
a
legal person or entity (including, for the avoidance of doubt, any
securitisation trust or fund) habitually resident for taxation purposes
in
a Qualifying State which is not acting through a territory considered
as a
tax haven pursuant to Spanish laws and regulations or through a permanent
establishment in Spain; or
|
|
(ii)
|
a
legal person or entity (including, for the avoidance of doubt, any
securitisation trust or fund) which, as a result of any applicable
double
taxation treaty, is entitled to receive any payments made by a Borrower
to
such legal person or entity hereunder without any deduction or withholding
for or on account of Tax; or
|
|
(iii)
|
a
Domestic Lender.
|
"Qualifying
State"
means a
member state of the European Union (other than Spain).
"Tax
Credit"
means a
credit against, relief or remission from, or repayment of, any Tax.
"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 14.2
(Tax
gross-up)
or a
payment under Clause 14.3
(Tax
indemnity).
|
(b)
|
Unless
a contrary indication appears, in this Clause 14
a
reference to "determines"
or "determined"
means a determination made in the absolute good faith discretion
of the
person making the determination.
|
| 14.2 |
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.
-
44 -
(b) The
Company 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 Company 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)
An
Obligor is not required to make an increased payment to a Lender under paragraph
(c) above for a Tax Deduction in respect of Tax imposed by
Spain from a payment of interest on a Loan, if on the date on which the payment
falls due:
(i) the
payment could have been made to the relevant Lender without a Tax Deduction
if
it was a Qualifying Lender, but on that date that Lender is
not or has ceased to be a Qualifying Lender other than as a result
of any change after the date it became a Lender under this Agreement in (or
in
the interpretation, administration, or application of) any law or
treaty, or any published practice or concession of any relevant taxing
authority; or
(ii) the
relevant Lender is a Qualifying Lender under paragraph (ii) of the definition
of
"Qualifying Lender" and the Obligor making the payment is able
to demonstrate that the payment could have been made to the Lender without
any
Tax Deduction if the Lender had complied with its obligations
under paragraph (f) below.
(e) 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.
(f)
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.
(g) A
Lender
that is a Qualifying Lender under paragraph (ii) of the definition of
"Qualifying Lender" and each Obligor which is required to make a
payment
to which
that Treaty Lender is entitled shall co-operate in completing any procedural
formalities necessary for that Obligor to obtain
authorisation to
make
that payment without a Tax Deduction
| 14.3 |
Tax
indemnity
|
(a) The
Company 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.
-
45 -
(b) Paragraph
(a) of this Clause 14.3
shall
not apply:
(i) with
respect to any Tax assessed on a Finance Party:
(A) 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
(B) 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 received or
receivable (but not any sum deemed to be received or receivable)
by that Finance Party; or
(ii) to
the
extent a loss, liability or cost:
(A) is compensated for by an increased payment under
Claus 14.2
(Tax
gross-up);
or
(B) would
have been compensated for by an increased payment under Clause 14.2
(Tax
gross-up)
but was
not so compensated solely
because one of the exclusions in paragraph (d) of Clause 14.2
(Tax
gross-up)
applied.
(c) A
Protected Party making, or intending to make a claim pursuant to paragraph
(a)
of this Clause 14.3
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 Company.
(d) A
Protected Party shall, on receiving a payment from an Obligor under this Clause
14.3,
notify
the Agent.
| 14.4 |
Tax
Certificates
|
(a)
Without
prejudice to the other provisions of this Clause 14,
in
relation to any exemption from or application of a rate lower than that of
general
application pursuant to any legislation in Spain or any double taxation treaty,
or pursuant to any other cause relating to residence status, any
Lender
which is not a Domestic Lender shall supply the Company, through the Agent,
prior to the interest payment date with a certificate of residence
issued
by the pertinent fiscal administration, in the case of a Qualifying Lender
which is not a Domestic Lender, accrediting such Qualifying Lender
as
resident for Tax purposes in a Qualifying State or, as the case may be,
accrediting such Lender as resident for Tax purposes in a State which
has
signed and ratified a double taxation treaty with Spain.
-
46 -
(b) As
such
certificates referred to in paragraph (a) of this Clause 14.4
are, at
the date hereof, valid only for a period of one year, each such Lender
will
be
required to so supply a further such certificate upon expiry of the previous
certificate in relation to any further payment of interest.
(c) If
any
Lender which has supplied a certificate under Clause 14.4(a)
becomes aware that any information contained in that certificate is not correct
in
all material
respects throughout the period for which that certificate is valid, it shall,
as
soon as practicable, supply the Agent with details of that
matter,
following which the Agent shall supply those details to the Company, and, if
appropriate, that Lender shall promptly supply a new certificate
pursuant to Clause 14.4(a)
above.
| 14.5 |
Tax
Credit
|
If
an
Obligor makes a Tax Payment and the relevant Finance Party determines that:
(a) a
Tax
Credit is attributable either to an increased payment of which that Tax Payment
forms part, or to that Tax Payment; and
(b) that
Finance Party has obtained, utilised and retained that Tax Credit,
the
Finance Party shall pay an amount to the Obligor which that Finance Party
determines will leave it (after that payment) in the same after-Tax position
as
it would have been in had the Tax Payment not been required to be made by the
Obligor.
| 14.6 |
Stamp
Taxes
|
The
Company 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 entering into of a Transfer Certificate.
| 14.7 |
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
amount in respect of 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 amounts in respect of 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.
| 15. |
INCREASED
COSTS
|
| 15.1 |
Increased
costs
|
(a)
Subject
to Clause 15.2 (Increased
cost claims)
and
Clause 15.3
(Exceptions)
the
Company 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:
-
47 -
(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.
| 15.2 |
Increased
cost claims
|
(a) A
Finance
Party intending to make a claim pursuant to Clause 15.1
(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 Company and provide the Company 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.
| 15.3 |
Exceptions
|
(a)
Clause
15.1
(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 14.3
(Tax
indemnity)
(or would have been compensated for under Clause 14.3
(Tax
indemnity)
but was not so compensated solely because any of the exclusions in
paragraph (b) of Clause 14.3
(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; or
|
|
(v)
|
attributable
to the implementation of or compliance with the "International Convergence
of Capital Measurements and Capital Standards - a Revised Framework"
published by the Basel Committee on Banking Supervision in June 2004
in
the form existing on the date of this Agreement ("Basel
II")
or any other law or regulation that implements Basel II (whether
such
implementation or compliance is by a government, governmental regulator,
Finance Party or an Affiliate
thereof).
|
-
48 -
|
(b)
|
In
this Clause 15.3,
a
reference to a "Tax
Deduction"
has the same meaning given to the term in Clause 14.1 (Definitions).
|
| 16. |
OTHER
INDEMNITIES
|
| 16.1 |
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.
| 16.2 |
Other
indemnities
|
(a) 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:
(i) the
occurrence of any Event of Default;
(ii) 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 29
(Sharing
among the Finance Parties);
(iii) funding,
or making arrangements to fund, its participation in a Loan requested by the
Company 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
-
49 -
(iv) a
Loan
(or part of a Loan) not being prepaid in accordance with a notice of prepayment
given by the Company.
(b)
The
Company will indemnify and hold harmless each Finance Party and each of their
respective directors, officers, employees, agents, advisors and
representatives (each being an "Indemnified
Person")
from
and against any and all claims, damages, losses, liabilities, costs, legal
expenses and other
expenses (all together "Losses")
which
have been incurred by or awarded against any Indemnified Person, in each case
arising out of or in connection
with any claim, investigation, litigation or proceeding (or the preparation
of
any defence with respect thereto) commenced or threatened by any
person
in relation to any of the Finance Documents (only in so far as such claim,
investigation, litigation or proceeding relates to the use of proceeds of
the
Facilities towards the acquisition of Target Shares (and any Target ADRs)
by the Company or BidCo (or any person acting in concert with the
Company or BidCo)) except to the extent such Losses or claims result from
such Indemnified Person's negligence or misconduct or a breach of
any
term of any Finance Document by an Indemnified Person provided
that:
(i) the
Indemnified Party shall as soon as reasonably practicable inform the Company
and
Cemex Parent of any circumstances of which it is aware
and which would be reasonably likely to give rise to any such claim,
investigation, litigation or proceeding (whether or not a claim,
investigation,
litigation or proceeding has occurred or been threatened);
(ii)
the
Indemnified Party will, where reasonable and practicable, and taking into
account the provisions of this Agreement, give the Company and
Cemex Parent an opportunity to consult with it with respect to the
conduct or settlement of any such claim, investigation, litigation or
proceeding;
(iii)
an
Indemnified Party will provide the Company on request (and, to the extent
practicable without any waiver of legal professional privilege or
breach of confidentiality obligation) with copies of material
correspondence in relation to the Losses and allow the Company or its
appointed
representative to attend all material meetings in relation to the Losses and
receive copies of material legal advice obtained by the Indemnified
Party
in
relation to the Losses;
(iv) the
Company will keep strictly confidential all information received by it in
connection with the Losses and will not disclose any information to
any
third party without the prior written consent of the Indemnified Party (except
as required by any applicable law);
(v) no
Obligor shall be liable for any settlement of the Losses unless the Company
has
consented to that settlement; and
-
50 -
(vi)
no
Indemnified Party shall be required to comply with paragraphs (i), (ii) or
(iii)
nor shall paragraph (v) apply unless the Indemnified Party is and
continues
to be indemnified on a current basis for its costs and expenses.
Any
third party referred to in this paragraph (b) may rely on this Clause
16.2
subject
to Clause 1.4
(Third
party rights)
and the
provisions of the
Third
Parties Act.
| 16.3 |
Indemnity
to the Agent
|
The
Company 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 Company) 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.
| 17. |
MITIGATION
BY THE LENDERS
|
| 17.1 |
Mitigation
|
(a) Each
Finance Party shall, in consultation with the Company, 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 9.1
(Illegality
of a
Lender),
Clause
14
(Tax
Gross-up and Indemnities)
or
Clause 15
(Increased
Costs)
or
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.
| 17.2 |
Limitation
of liability
|
(a) The
Company 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 17.1
(Mitigation).
(b) A
Finance
Party is not obliged to take any steps under Clause 17.1
(Mitigation)
if, in
the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it.
| 18. |
COSTS
AND EXPENSES
|
| 18.1 |
Transaction
expenses
|
(a) The
Company shall within 15 days of receipt of a demand (and delivery of the
relevant receipts, invoices or other documentary evidence), pay the
Agent and each Arranger the amount of all costs and expenses (including
legal fees) reasonably incurred by any of them in connection with
the
negotiation, preparation, printing and execution of the Finance Documents
and the syndication of the Facilities.
-
51 -
(b) The
Company shall within 15 days of receipt of demand, pay the Agent and each
Arranger the amount of all documented costs and expenses
(including legal fees) reasonably incurred by any of them in connection with
the
negotiation, preparation, printing and execution of any Finance
Documents executed after the date of this Agreement.
| 18.2 |
Amendment
costs
|
If
(a) an
Obligor requests an amendment, waiver or consent or (b) an amendment is required
pursuant to Clause 30.9
(Change
of currency),
the
Company shall, within five 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.
| 18.3 |
Enforcement
costs
|
The
Company 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.
-
52 -
SECTION
7
GUARANTEE
| 19. |
GUARANTEE
AND INDEMNITY
|
| 19.1 |
Guarantee
and indemnity
|
Each
Guarantor irrevocably and unconditionally jointly and severally:
(a)
guarantees
to each Finance Party punctual performance by each Borrower of that Borrower's
obligations under the Finance Documents;
(b)
undertakes
with each Finance Party that whenever a 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.
| 19.2 |
Continuing
Guarantee
|
This
guarantee is a continuing guarantee and will extend to the ultimate balance
of
sums payable by each Borrower under the Finance Documents, regardless of any
intermediate payment or discharge in whole or in part.
| 19.3 |
Reinstatement
|
If
any
payment by any Borrower or any discharge given by a Finance Party (whether
in
respect of the obligations of any 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 each 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 each Borrower, as if the payment, discharge,
avoidance or reduction had not occurred.
| 19.4 |
Waiver
of defences
|
The
obligations of each Guarantor under this Clause 19
will not
be affected by an act, omission, matter or thing which, but for this Clause
19,
would
reduce, release or prejudice any of its obligations under this Clause
19
(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, any Borrower or other
person;
(b) the
release of any Borrower or any other person under the terms of any composition
or arrangement with any creditor of any member of the Group;
-
53 -
(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, any 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) incapacity
or lack of power, authority or legal personality of or dissolution or change
in
the members or status of a 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.
| 19.5 |
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 19.5.
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.
| 19.6 |
Appropriations
|
Until
all
amounts which may be or become payable by a 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 19.6,
provided
that
the
operation of this Clause 19.6
shall
not be deemed to create any Security.
| 19.7 |
Deferral
of Guarantors' rights
|
Until
all
amounts which may be or become payable by a 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:
-
54 -
(a)
to
be
indemnified by a Borrower;
(b) to
claim
any contribution from any other guarantor of any 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.
| 19.8 |
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.
-
55 -
SECTION
8
REPRESENTATION,
UNDERTAKINGS AND EVENTS OF DEFAULT
| 20. |
REPRESENTATIONS
|
Each
Obligor makes the representations and warranties set out in this Clause
20
to each
Finance Party.
| 20.1 |
Status
|
(a) It
is a
corporation, duly organised and validly existing under the laws and regulations
of its jurisdiction of incorporation.
(b) It
has
the power to own its assets and carry on its business as it is being
conducted.
| 20.2 |
Binding
obligations
|
The
obligations expressed to be assumed by it in each Finance Document are, subject
to any reservations which are specifically referred to in any Legal Opinion,
legal, valid, binding and enforceable obligations.
| 20.3 |
Non-conflict
with other obligations
|
The
entry
into and performance by it of, and the transactions contemplated by, the Finance
Documents do not and will not conflict with:
(a)
any
law
or regulation applicable to it;
(b)
its
constitutional documents; or
(c)
any
agreement or instrument binding upon it or any of its assets.
Assuming
that no Lender (or any person with whom a Lender has entered into a
sub-participation agreement) is a U.S. Lender, no part of the proceeds of any
Loans will be used in a manner that would cause the Loans to be in violation
of
Regulation U or X of the Board of Governors of the Federal Reserve System of
the
United States.
| 20.4 |
Power
and authority
|
It
has
the power to enter into, perform and deliver, and has taken all necessary action
to authorise its entry into, performance and delivery of, the Finance Documents
to which it is a party and the transactions contemplated by those Finance
Documents.
| 20.5 |
Validity
and admissibility in
evidence
|
All
Authorisations required or desirable:
(a) to
enable
it lawfully to enter into, exercise its rights and comply with its obligations
in the Finance Documents to which it is a party; and
(b) to
make
the Finance Documents to which it is a party admissible in evidence in its
jurisdiction of incorporation,
have
been
obtained or effected and are in full force and effect or will be obtained in
accordance with the provisions of this Agreement.
-
56 -
| 20.6 |
Governing
law and enforcement
|
(a) The
choice of English law as the governing law of the Finance Documents will be
recognised and enforced in its jurisdiction of incorporation
subject
to any reservations which are specifically referred to in any Legal
Opinion.
(b) Any
judgement obtained in England in relation to a Finance Document will be
recognised and enforced in its jurisdiction of incorporation, subject
to
any reservations which are specifically referred to in any Legal
Opinion.
| 20.7 |
Deduction
of Tax
|
Subject
to the completion of any procedural formality, it is not required under the
laws
and regulations of its jurisdiction of incorporation to make any deduction
for
or on account of Tax from any payment it may make under any Finance Document
to
any Qualifying Lender.
| 20.8 |
No
filing or stamp taxes
|
Under
the
laws and regulations of its jurisdiction of incorporation it is not necessary
that the Finance Documents be filed, recorded or enrolled with any court or
other authority in that jurisdiction or that any stamp, registration or similar
Tax be paid on or in relation to the Finance Documents or the transactions
contemplated by the Finance Documents.
| 20.9 |
No
default
|
(a) No
Default is continuing or might reasonably be expected to result from the making
of any Utilisation.
(b) No
other
event or circumstance is outstanding which constitutes a default under any
other
agreement or instrument which is binding on it or any of its
Subsidiaries
or to which its (or its Subsidiaries') assets are subject which has or is
reasonably likely to have a Material Adverse Effect.
| 20.10 |
No
misleading information
|
(a) Any
written factual information provided by the Company for the purposes of the
Information Memorandum was true and accurate in all material
respects as at the date it was provided or as at the date (if any) at which
it
is stated.
(b) Save
as
disclosed in writing to the Agent after the date this Agreement (such disclosed
information only having come to the attention of the Company
after such date), so far as the Company is aware, after reasonable enquiry,
nothing has occurred or been omitted from the Information
Memorandum
and no information has been given or withheld that results in the information
contained in the Information Memorandum being untrue or misleading
in
any material respect.
(c) All
material written information (other than the Information Memorandum) supplied
by
any member of the Group in relation to the Finance Documents
is true, complete and accurate in all material respects as at the date it was
given or stated to be given and is not misleading in any material
respect.
| 20.11 |
Financial
statements
|
(a) Its
Original Financial Statements were prepared in accordance with GAAP consistently
applied and are complete and accurate in all material
respects.
-
57 -
(b) Its
Original
Financial Statements fairly represent in all material respects its financial
condition and operations during the relevant financial year.
(c) For
the
purposes of any repetition of the representation contained in paragraphs (a)
and
(b) of this Clause 20.11
(pursuant to Clause 20.21
(Times
on
which representations are made))
the
representations will be made in respect of the latest available audited
consolidated annual financial
statements
of each Obligor, instead of the Original Financial Statements.
| 20.12 |
Pari
passu ranking
|
Its
payment obligations under the Finance Documents rank at least pari passu with
the claims of all its other unsecured and unsubordinated creditors, except
for
obligations mandatorily preferred by law or regulation applying to companies
generally.
| 20.13 |
No
proceedings pending or
threatened
|
No
litigation, arbitration or administrative proceedings of or before any court,
arbitral body or agency which (i) are likely to be adversely determined and
which, if so determined, would be reasonably likely to have a Material Adverse
Effect or (ii) (where not of a frivolous or vexatious nature or where not
dismissed within 30 days of commencement) purport to affect the legality,
validity or enforceability of any of the obligations under the Finance
Documents, have been started or threatened against any Obligor or any Material
Subsidiary.
| 20.14 |
Offer
Documents Information
|
Except
as
expressly permitted pursuant to this Agreement, the Offer Documents as delivered
to the Agent contain all the material terms of the Offer as at the date of
each
such Offer Document and the Offer Document reflects the terms of the
Announcement in all material respects.
| 20.15 |
No
winding-up
|
No
legal
proceedings or other procedures or steps have been taken or, to the Company's
knowledge after reasonable enquiry, are being threatened, in relation to the
winding-up, dissolution, administration or reorganisation of any Obligor or
Material Subsidiary (other than a solvent liquidation or reorganisation of
any
Material Subsidiary which is not an Obligor).
| 20.16 |
Material
Adverse Change
|
There
has
been no material adverse change in the Company's business, condition (financial
or otherwise), operations, performance or assets taken as a whole (or the
business, consolidated condition (financial or otherwise) operations,
performance or the assets generally of the Group taken as a whole) since the
date of the Company's Original Financial Statements.
| 20.17 |
Environmental
compliance
|
Each
member of the Group has performed and observed in all material respects all
Environmental Law, Environmental Permits and all other material covenants,
conditions, restrictions or agreements directly or indirectly concerned with
any
contamination, pollution or waste or the release or discharge of any toxic
or
hazardous substance in connection with any real property which is or was at
any
time owned, leased or occupied by any member of the Group or on which any member
of the Group has conducted any activity where failure to do so might reasonably
be expected to have a Material Adverse Effect.
-
58 -
| 20.18 |
Environmental
Claims
|
No
Environmental Claim has been commenced or (to the best of its knowledge and
belief) is threatened against any member of the Group where that claim would
be
reasonably likely, if finally determined against that member of the Group,
to
have a Material Adverse Effect.
| 20.19 |
No
Immunity
|
In
any
proceedings taken in its jurisdiction of incorporation in relation to this
Agreement, it will not be entitled to claim for itself or any of its assets
immunity from suit, execution, attachment or other legal process.
| 20.20 |
Private
and commercial acts
|
Its
execution of the Finance Documents constitutes, and its exercise of its rights
and performance of its obligations hereunder will constitute, private and
commercial acts done and performed for private and commercial purposes.
| 20.21 |
Times
on which representations are
made
|
(a)
All
the
representations and warranties in this Clause 20
are made
to each Finance Party on the date of this Agreement except for:
(i)
the
representations and warranties set out in Clause 20.10 (No
misleading information)
which
are deemed to be made by each Obligor on
the date that the Information Memorandum was approved by Cemex Parent (or its
relevant Subsidiary) and on the Syndication Date; and
(ii)
the
representations and warranties set out in Clause 20.14 (Offer
Documents Information)
which
are made on the date of this Agreement
and are deemed to be made by each Obligor on the Unconditional Date.
(b) The
Repeating Representations are deemed to be made by each Obligor to each Finance
Party on the Unconditional Date, the date of each
Utilisation Request and on the first day of each Interest Period provided
that in
respect of any Acquisition Utilisation made during the Certain
Funds
Period, only the Certain Funds Representations will be deemed to be repeated
by
the relevant Obligor on the date such Acquisition Utilisation is
made and on the first day of each Interest Period relating thereto up to (and
including) the first day of the Interest Period which begins closest to
the
end of the Certain Funds Period and further provided
that
the
representations given in Clause 20.14
(Offer
Documents Information)
shall
not be
repeated after the end of the Certain Funds Period.
(c)
The
Repeating Representations and each of the representations and warranties set
out
in Clause 20.5
(Validity
and admissibility in evidence),
Clause 20.6
(Governing
law and enforcement),
Clause
20.9
(No
default)
and
paragraph (c) of Clause 20.10
(No
misleading information)
(in
respect only of information given by it) are deemed to be made by each
Additional Guarantor to each Finance Party on the day on which it
becomes
an Additional Guarantor.
(d)
Each
representation or warranty deemed to be made after the date of this Agreement
shall be made by reference to the facts and circumstances
existing at the date the representation or warranty is made.
-
59 -
| 21. |
INFORMATION
UNDERTAKINGS
|
The
undertakings in this Clause 21
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.
| 21.1 |
Financial
statements
|
The
Company shall supply to the Agent:
(a) (subject
as below) as soon as the same become available, but in any event within 180
days
after the end of each of such Obligor's respective financial
years:
(i) the
Company's audited consolidated and unconsolidated financial statements for
that
financial year; and
(ii)
each
other Obligor's (if any) respective audited consolidated (to the extent
available) and unconsolidated financial statements for that
financial
year; and
(b) as
soon
as the same become available, but in any event within 90 days after the end
of
the first half of each of its financial years, its unaudited
consolidated financial statements for that period provided
that no
such
financial statements shall be provided in respect of any such half-year
period
during which the Acquisition of BidCo Date occurs.
With
regard to the first financial year of the Company ending after the Acquisition
of BidCo Date, the date by which the documents set out in (a) above must be
supplied shall be extended to the date falling 270 days after the end of such
financial year provided
that
if such
financial statements have not been supplied by the date falling 180 days after
the end of that financial year then the Company shall also supply the Agent
with
its non-audited consolidated financial statements for that financial year no
later than the date falling 180 days after the end of that financial year.
| 21.2 |
Compliance
Certificate
|
(a)
Save
where sub-paragraph (c) applies, the Company shall supply to the Agent, with
each set of consolidated financial statements delivered pursuant
to paragraphs (a)(i) and (b) of Clause 21.1
(Financial
statements),
a
Compliance Certificate setting out (in reasonable detail) computations as
to
compliance with Clause 22
(Financial Covenants)
as at
the date as at which those financial statements were drawn up.
(b)
Save
where sub-paragraph (c) applies, each Compliance Certificate shall be signed
by
an Authorised Signatory of the Company and, if required to
be delivered with the consolidated financial statements delivered pursuant
to
paragraph (a)(i) of Clause 21.1
(Financial
statements),
by
the
Company's auditors.
(c)
Following
the Acquisition of Target Date and prior to the delivery of the audited
consolidated financial statements of the Company relating to the
financial year in which the Acquisition of BidCo Date occurs, each Compliance
Certificate delivered in respect of a Relevant Period shall set out
the
information required to calculate, and shall include a calculation of, the
financial ratios contained in Clause 22
(Financial
Covenants),
in
each case in
respect of (i) the Group, (ii) BidCo and its Subsidiaries and (iii) (including
any necessary adjustments) the Group, together with BidCo and its
Subsidiaries, on a pro
forma
basis.
Each Compliance Certificate delivered pursuant to this sub-paragraph shall
be
signed by an Authorised Signatory
of the Company.
-
60 -
| 21.3 |
Requirements
as to financial statements
|
(a) Each
set
of financial statements delivered by the Company pursuant to Clause 21.1
(Financial
statements)
shall
be certified by an Authorised
Signatory of the relevant company as fairly representing in all material
respects its financial condition as at the date as at which those
financial
statements were drawn up.
(b) The
Company shall procure that each set of financial statements delivered pursuant
to Clause 21.1
(Financial
statements)
is
prepared using 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 GAAP, or the accounting practices
or
reference periods and, unless amendments are agreed in accordance with paragraph
(c) of this Clause 21.3,
its
auditors (or, if appropriate, the
auditors of the relevant Obligor) deliver to the Agent:
(i) a
description of any change necessary for those financial statements to reflect
the 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
22 (Financial
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.
(c) If
the
Company adopts International Accounting Standards or, unless the procedure
in
(b) above is utilised, there are changes to GAAP, or the
accounting practices or reference periods, the Company and the Agent shall,
at
the Company's request, negotiate in good faith with a view to
agreeing
such
amendments to the financial covenants in Clause 22
(Financial
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 Company
not
adopted International Accounting Standards or had
there not been a change
in
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
Company subject to the consent of the Majority Lenders. If no
such agreement is reached within 90 days of the Company's request, the
Company
will remain subject to the obligation to deliver the information
specified in paragraph (b) of this Clause 21.3
and the
financial covenants in Clause 22
(Financial
Covenants)
and the
ratios used to calculate the
Margin shall be based on the information delivered.
-
61 -
| 21.4 | Information: miscellaneous | |
|
The Company shall supply to the Agent.
|
||
|
(a)
|
all
documents dispatched by the Company to its shareholders (or any
class of
them) or its creditors generally at the same time as they are
dispatched;
|
|
|
(b)
|
promptly
upon becoming aware of them, the details of any litigation, arbitration
or
administrative proceedings which are current, or which, to the
Company's
knowledge after reasonable enquiry, are being threatened or are
pending
and are likely to be adversely determined against any member of
the Group
which, in the reasonable opinion of the Company, are not spurious
or
vexatious, and which might, if adversely determined, have a Material
Adverse Effect; and
|
|
|
(c)
|
promptly,
such further information regarding the financial condition, assets
and
business of any Obligor or member of the Group as the Agent (or
any Lender
through the Agent) may reasonably request other than any information
the
disclosure of which would result in a breach of any applicable
law or
regulation or confidentiality agreement entered into in good faith
by any
member of the Group provided
that
the Company shall use reasonable efforts to be released from any
such
confidentiality agreement.
|
|
|
21.5
|
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
(unless that Obligor is aware that a notification has already been
provided by another Obligor).
|
|
|
(b)
|
Promptly
upon a request by the Agent, the Company 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).
|
|
|
21.6
|
"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 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
Company shall, by not less than five 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 26
(Changes
to the Obligors).
|
|
|
(c)
|
Following
the giving of any notice pursuant to paragraph (b) above, the Company
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.
|
|
-
62 -
| 21.7 |
Notarisations
|
Each
Obligor shall notify the Agent of any Notarisations referred to in paragraph
(a)(iv) of Clause 23.5
(Notarisation)
promptly upon such Notarisations
taking
place.
|
22.
|
FINANCIAL
COVENANTS
|
| 22.1 |
Financial
definitions
|
In
this
Clause 22:
"Adjusted
EBITDA"
means,
for any Relevant Period, the sum of (a) EBITDA and (b) with respect to any
business acquired during such period, the sum of (i) the operating income and
(ii) depreciation and amortization expense for such business, as determined
in
accordance with GAAP for such Relevant Period, provided
that
the
Company need only make the adjustments contemplated by "(b)" above if the
operating income and depreciation and amortization expense of the acquired
business in the 12 Months prior to its acquisition amount to US$10,000,000
or
more.
"Cemex
Capital Contributions"
means
contributions in cash to the capital of the Company made after 1 January 2006
by
Cemex Parent or by any Subsidiary of Cemex Parent (other than BidCo or any
Subsidiary of BidCo) not being a Subsidiary of the Company.
"EBITDA"
means,
for the Relevant Period immediately preceding the date on which it is to be
calculated, operating profit plus annual depreciation for fixed assets plus
annual amortisation of intangible assets plus annual amortisation of start-up
costs of the Group plus dividends received from non-consolidated companies
and
from companies consolidated by the equity method plus an amount equal to the
amount of Cemex Capital Contributions made during the period immediately
preceding the date on which it is to be calculated (up to an amount equal to
the
amount of Royalty Expenses made in such period) plus the income recorded during
such period for the use of CO2
Emission
Rights (to the extent not already included in the calculation of operating
profit). Such calculation shall be made in accordance with GAAP.
"Finance
Charges"
means
for any Relevant Period, the sum (without duplication) of (a) all interest
expense in respect of Financial Indebtedness (including imputed interest on
Capital Leases) for such period plus (b) all debt discount and expense
(including, without limitation, expenses relating to the issuance of instruments
representing Financial Indebtedness) amortized during such period plus (c)
amortization of discounts on sales of receivables during such period plus (d)
all factoring charges for such period plus (e) all guarantee charges for such
period, all determined on a consolidated basis in respect of the Group and
in
accordance with GAAP.
"Guarantees"
means
any guarantee or indemnity of Financial Indebtedness of another person (in
the
case of any indemnity for any specified amount or otherwise in the amount
specified in or for which provision has been made in the accounts of the
indemnifier) in any form made other than in the ordinary course of business
of
the guarantor.
-
63 -
"Intellectual
Property Rights"
means
all copyrights (including rights in computer software), trade marks, service
marks, business names, patents, rights in inventions, registered designs, design
rights, database rights and similar rights, rights in trade secrets or other
confidential information and any other intellectual property rights and any
interests (including by way of licence) in any of the foregoing (in each case
whether registered or not and including all applications for the same) which
may
subsist in any given jurisdiction.
"Net
Borrowings"
means,
at any time, the remainder of (a) Total Borrowings of the Group at such time
less (b) the aggregate amount of the following items held by the Company and
its
Subsidiaries at such time: cash on hand, marketable securities, investments
in
money market funds, banker's acceptances, short-term deposits and other liquid
investments.
"Relevant
Period"
means
each period of twelve Months ending on the last day of each half of the
Company's financial year.
"Rolling
Basis"
means
the calculation of a ratio or an amount made at the end of a financial half
year
in respect of that financial half year and the immediately preceding financial
half year.
"Royalty
Expenses"
means
expenses incurred by the Company or any of its Subsidiaries to Cemex Parent
or
Subsidiary of Cemex Parent which is not also a member of the Group as (a)
consideration for the granting to the Company or any Subsidiary of a licence
to
use, exploit and enjoy Intellectual Property Rights and any other intangible
assets such as, but not limited to, know-how, formulae, process technology
and
other forms of intellectual and industrial property, whether or not registered,
held by Cemex Parent or any of its Subsidiaries not being a Subsidiary of the
Company; or (b) fees, commissions or other amounts accrued in respect of any
management contract, services contract, overhead expenses allocation arrangement
or any other similar transaction; provided
that
in
paragraphs (a) and (b) such amounts shall have been taken into consideration
in
the calculation of operating profit under Spanish GAAP.
"Subordinated
Debt"
means
debt granted on terms that are fair and reasonable and no less favourable than
would be obtained in a comparable arms' length transaction by Cemex Parent
or
any Subsidiary of Cemex Parent which is not also a member of the Group to the
Company or any of its Subsidiaries on terms such that no payments of principal
may be made thereunder (including but not limited to following any winding up,
concurso
de acreedores
or other
like event of the Company) unless either:
|
(i)
|
the
Agent has confirmed in writing that all amounts outstanding hereunder
have
been paid in full; or
|
|
(ii)
|
the
ratio of Net Borrowings to Adjusted EBITDA (calculated in accordance
with
Clause 22.3 (Financial
testing))
prior to such repayment is equal to or lower than 2.7:1 and will
remain
equal to or lower than 2.7:1 after such repayment and no Event of
Default
under this Agreement has occurred and is continuing or will occur
as a
result of the repayment of such
debt.
|
-
64 -
"Total
Borrowings"
means
without duplication, in respect of any person all Guarantees granted by such
person plus all such person's Financial Indebtedness, but excluding (i) any
Guarantee or Financial Indebtedness which, notwithstanding falling within the
definition of Guarantee or Financial Indebtedness, is not required to be
recorded as a liability by that person on its balance sheet (whether
consolidated or otherwise) in accordance with generally accepted accounting
principles applicable to that person which are in effect as at the time that
such Guarantee or Financial Indebtedness is entered into, issued or incurred
and
(ii) any Subordinated Debt.
In
respect of any period following the Acquisition of Target Date but prior to
the
Acquisition of BidCo Date, references in the above definitions to a "Subsidiary"
of the Company and to the "Group" shall be deemed to include BidCo and its
Subsidiaries, as if the Acquisition of BidCo Date has occurred.
|
22.2
|
Financial condition |
The
Company shall ensure that in respect of any Relevant Period:
|
(a)
|
the ratio of Net Borrowings to Adjusted EBITDA calculated on
a
Rolling Basis shall be less than or equal to 3.5:1; and
|
|
| (b) | the ratio of EBITDA to Finance Charges calculated on a Rolling Basis shall be greater than or equal to 3.0:1. |
|
22.3
|
Financial testing |
The
financial covenants set out in Clause 22.2
(Financial
condition)
shall
be tested semi-annually by reference to the Company's consolidated financial
statements delivered pursuant to Clause 21.1
(Financial
statements)
and/or
each Compliance Certificate delivered pursuant to Clause 21.2
(Compliance
Certificate).
|
22.4
|
Accounting
terms
|
All
accounting expressions which are not otherwise defined herein shall have the
meaning ascribed thereto in GAAP.
|
23.
|
GENERAL
UNDERTAKINGS
|
The
undertakings in this Clause 23
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.
|
23.1
|
Authorisations
|
Each
Obligor shall promptly:
|
(a)
|
obtain, comply with and do all that is necessary to maintain
in
full force and effect; and
|
|
| (b) | supply certified copies to the Agent of, |
any
Authorisation required under any law or regulation of its jurisdiction of
incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or admissibility
in evidence in its jurisdiction of incorporation of any Finance
Document.
-
65 -
| 23.2 |
Preservation
of corporate existence
|
Subject
to Clause 23.8
(Merger),
each
Obligor shall (and the Company shall ensure that each of its Material
Subsidiaries shall), preserve and maintain its corporate existence and
rights.
| 23.3 |
Preservation
of properties
|
Each
Obligor shall (and the Company shall ensure that each of its Material
Subsidiaries shall) maintain and preserve all of its properties that are used
in
the conduct of its business in good working order and condition (ordinary wear
and tear excepted).
| 23.4 |
Compliance
with laws and regulations
|
| (a) |
Each Obligor shall (and shall procure that each of its Subsidiaries
and (following the Acquisition of Target Date but prior to the
Acquisition
of BidCo Date) BidCo and its Subsidiaries shall) comply in all
respects
with all laws and regulations to which it may be subject, if failure
to so
comply would be likely to have a Material Adverse Effect.
|
|
| (b) | The Company shall (and shall procure that each of its Subsidiaries and (following the Acquisition of Target Date but prior to the Acquisition of BidCo Date) BidCo and its Subsidiaries shall) ensure that the levels of contribution to pension schemes are and continue to be sufficient to comply with all its and their material obligations under such schemes and generally under applicable laws (including ERISA) and regulations, except where failure to make such contributions would not reasonably be expected to have a Material Adverse Effect. |
| 23.5 |
Notarisation
|
| (a) |
Subject
to paragraph (b) of this Clause 23.5,
the Company shall not (and shall procure that none of its Subsidiaries
or
(following the Acquisition of Target Date but prior to the Acquisition
of
BidCo Date) BidCo and its Subsidiaries shall) permit any of its
unsecured
indebtedness to be notarised as a Spanish Public Document (any
such
notarisation, a "Notarisation"),
other than the following permitted Notarisations ("Permitted
Notarisations"):
|
||
|
(i)
|
any Permitted Notarisations listed in Schedule 11 (Existing
Notarisations)
and any amendments or modifications thereof, provided that any
such
amendment or modification shall not result in the increase of the
principal amount of the relevant indebtedness nor the extension
of the
maturity thereof nor, for the avoidance of doubt, relate to any
refinancing of the relevant indebtedness;
|
||
| (ii) |
Notarisations which are required by applicable law or regulation
or
which arise by operation of law other than pursuant to any issue
of debt
securities in accordance with Article 285 of the Spanish Corporations
Law
(Ley
de Sociedades Anónimas);
|
||
| (iii) |
Notarisations with the prior written consent of the Majority
Lenders;
|
||
| (iv) |
any Notarisations securing indebtedness the principal amount
of which
(when aggregated with the principal amount of any other Notarisations
other than any Permitted Notarisations under paragraphs (i) or
(iii)
above) do not exceed US$100,000,000 (or its equivalent in another
currency
or currencies); and
|
||
-
66 -
| (v) |
any Notarisations relating to indebtedness in respect of any
sale and
purchase agreement customarily registered in a public register
in Spain
and payment of which indebtedness is made within seven days of
the date of
such agreement.
|
||
| (b) | Paragraph (a) of this Clause 23.5 shall not apply if the Company, concurrently with any such Notarisation (not being a Permitted Notarisation) referred to in paragraph (a) of this Clause 23.5 and at its own cost and expense, causes this Agreement to be the subject of a Notarisation. | ||
| 23.6 |
Negative
pledge
|
The
Company shall not and shall not permit any of its Subsidiaries or (following
the
Acquisition of Target Date but prior to the Acquisition of BidCo Date) BidCo
and
its Subsidiaries to, directly or indirectly, create, incur, assume or permit
to
exist any Security on or with respect to any of its property or assets or those
of any Subsidiary, whether now owned or held or hereafter acquired, other than
the following Security ("Permitted
Security"):
| (a) |
Security 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
such
reserves or other appropriate provision, if any, as shall be required
by
GAAP shall have been made;
|
|
| (b) |
statutory liens of landlords and liens of carriers, warehousemen,
mechanics and materialment 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 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 and any liens created over the assets of BidCo by
operation of Australian law pursuant to the Offer process;
|
|
| (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) |
Security existing on the date of this Agreement as described
in
Schedule 10 (Existing
Security)
provided that the principal amount secured thereby is not increased
without the consent of the Agent (acting on the instructions of the
Majority Lenders);
|
-
67 -
| (f) |
any Security on property acquired by the Company or any of its
Subsidiaries after the date of this Agreement that was existing on
the
date of acquisition of such property provided
that
such Security was not incurred in anticipation of such acquisition;
and
any Security created to secure all or any part of the payment of
the
purchase price, or to secure indebtedness incurred or assumed to
pay all
or any part of the payment of the purchase price, of property acquired
by
the Company or any of its Subsidiaries after the date of this
Agreement,
provided, further, that
(i) any such Security 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
more than 50 per cent. of the voting stock of such corporation, the
stock
and assets of any acquired Subsidiary or acquiring Subsidiary by
which the
acquired Subsidiary shall be directly or indirectly controlled) and,
if
required by the terms of the instrument originally creating such
Security,
other property which is an improvement to, or is acquired for specific
use
with, such acquired property; (ii) if applicable, any such Security
shall
be created within nine Months after, in the case of property, its
acquisition, or, in the case of improvements, their Completion; and
(iii)
no such Security shall be made in respect of any indebtedness in
relation
to repayment of which recourse may be had to any member of the Group
(in
the form of Security) other than in relation to the item or items
as
referred to in (i) above;
|
|
| (g) |
any Security renewing, extending or refinancing the indebtedness
to
which any Security permitted by paragraph (f) above relates; provided
that
the principal amount of indebtedness secured by such Security immediately
prior thereto is not increased and such Security is not extended
to other
property;
|
|
| (h) |
any Security created on shares representing no more than a Stake
in
the capital stock of any of the Company's Subsidiaries solely as
a result
of the deposit or transfer of such shares into a trust or a special
purpose corporation (including any entity with legal personality)
of which
such shares constitute the sole assets provided
that
such Security may not secure Financial Indebtedness of the Company
or any
Subsidiary unless otherwise permitted under this Clause 23.6
and that the economic and voting rights in such capital stock is
maintained by the Company in its Subsidiaries;
|
|
| (i) |
any Security permitted by the Agent, acting on the instructions
of
the Majority Lenders;
|
|
| (j) |
any
Security created pursuant to or in respect of a Permitted Securitisation;
or
|
|
| (k) | in addition to the Security permitted by the foregoing paragraphs (a) to (j), Security securing indebtedness of the Company and its Subsidiaries (taken as a whole) not in excess of an amount equal to 5 per cent. of the Adjusted Consolidated Net Tangible Assets of the Group, as determined in accordance with GAAP, |
unless,
in each case, the Obligors have made or caused to be made effective provision
whereby the obligations hereunder are secured equally and rateably with, or
prior to, the indebtedness secured by such Security (other than Permitted
Security) for so long as such indebtedness is so secured.
For
the
purposes of paragraph (k) of this Clause 23.6,
"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 GAAP (other than with
respect to items referred to in (ii) below), minus (i) all current liabilities
of such person and its Subsidiaries (excluding the current portion of long-term
debt) and (ii) all goodwill, trade names, trademarks, licences, concessions,
patents, un-amortised debt discount and expense and other intangibles, all
as
determined on a consolidated basis in accordance with GAAP and by reference
to
the latest consolidated financial statements of the Company delivered pursuant
to Clause 21.1
(Financial
statements).
-
68 -
| 23.7 |
Disposals
|
|
(a)
|
Subject
to paragraph (b) of this Clause 23.7, the Company shall not (and
the
Company shall ensure that none of its Subsidiaries and (if the Acquisition
of BidCo Date has not occurred but BidCo becomes a Guarantor, during
the
period from the date that BidCo becomes a Guarantor until BidCo first
becomes a Subsidiary of the Company (if such occurs)) none of BidCo
and
its Subsidiaries shall), without the prior written consent of the
Majority
Lenders (such consent not to be unreasonably withheld or delayed),
enter
into a single transaction or a series of transactions (whether related
or
not) and whether voluntary or involuntary to sell, lease, transfer
or
otherwise dispose of all its assets or a substantial part of its
assets
representing more than 5 per cent. in aggregate of the total consolidated
assets of the Group, calculated by reference to (x) the latest
consolidated financial statements of the Company, delivered pursuant
to
paragraph (a)(i) of Clause 21.1 (Financial
statements)
or (ii) during the period in which a Compliance Certificate is delivered
pursuant to Clause 21.2(c), the figures provided in such Compliance
Certificate, unless (i) full value for such assets is received by
the
Company or its Subsidiaries; and (ii) an amount equal to the net
proceeds
of any such sale, lease, transfer or other disposal is reinvested
within
twelve months of receipt by the Company or its Subsidiaries in the
business of the Group;
|
|
(b)
|
Paragraph
(a) of this Clause 23.7 does not apply to any sale, lease, transfer
or
other disposal of assets:
|
|
(i)
|
made
on arm's length terms and for fair market value in the ordinary course
of
business of the disposing entity;
|
|
(ii)
|
in
respect of any Permitted
Securitisation;
|
|
(iii)
|
from
any member of the Group to another member of the Group on arm's length
terms and for fair market or book value, provided
that
the exception contained in this paragraph (iii) shall not apply to
any
sale, lease, transfer or other disposal of an
asset:
|
|
(1)
|
from
any Obligor to another member of the Group which is neither an Obligor
nor
a subsidiary of an Obligor unless the person to whom such sale, lease,
transfer or other disposal is made (the "Transferee")
or its direct or indirect parent company (as the case may be) becomes
a
Guarantor; or
|
|
(2)
|
from
any Material Subsidiary to another member of the Group which is not
a
Material Subsidiary unless the person making such sale, lease, transfer
or
other disposal does not cease to be a Material Subsidiary or, if
it ceases
to be a Material Subsidiary, any Transferee shall be deemed to be
a
Material Subsidiary;
|
-
69 -
|
(iv)
|
in
respect of which the net proceeds are used to repay any amounts
outstanding hereunder in an amount equal to such net proceeds and
if the
Available Commitments in an amount equal thereto are
cancelled;
|
|
(v)
|
in
respect of which the proceeds are applied pursuant to any prepayment
requirement in any debt agreements of the Company or any Subsidiary
in
relation to the use of proceeds received from the disposal of any
assets;
|
|
(vi)
|
in
respect of fixed assets or contractual rights which are exchanged
for
other fixed assets or contractual rights reasonably comparable as
to type
or quality;
|
|
(vii)
|
in
respect of cash or cash equivalent
investments;
|
|
(viii)
|
which
occurs due to the solvent liquidation or reorganisation of any member
of
the Group so long as any payment or assets distributed as a result
of such
liquidation or reorganisation are distributed to other members of
the
Group; or
|
|
(ix)
|
pursuant
to any joint venture agreements.
|
| 23.8 |
Merger
|
| (a) |
Subject to paragraphs (b) and (c) of this Clause 23.8,
unless it has obtained the prior written approval of the Majority
Lenders,
no Obligor shall (and the Company shall ensure that none of its
Subsidiaries or (prior to the Acquisition of BidCo Date) BidCo
and its
Subsidiaries shall) enter into any amalgamation, demerger, merger
or other
corporate reconstruction (a "Reconstruction"),
other than (i) a Reconstruction relating only to Cemex Parent's
Subsidiaries inter
se;
(ii) a Reconstruction between the Company and any of its Subsidiaries;
or
(iii) a solvent reorganisation or liquidation of any of the Subsidiaries
of the Company which are not Obligors, provided
that
in
any case no Default shall have occurred and be continuing at the
time of
such transaction or would result therefrom and provided
further that (a)
none of the Security (if any) granted to the Lenders nor the guarantees
granted by the Guarantors hereunder is or are adversely affected
as a
result, and (b) the resulting entity, if it is not an Obligor,
assumes the
obligations of the Obligor the subject of the merger.
|
|
| (b) |
Subject
to paragraph (c) of this Clause 23.8,
the Obligors may merge with any other person if the book value
of such
person's assets prior to the merger does not exceed 3 per cent.
of the
book value of the Group's assets taken as a whole considered on
a
consolidated basis.
|
|
| (c) | No merger otherwise permitted by paragraphs (a) and (b) of this Clause 23.8 shall be so permitted if as a result the then existing Ratings of the Company would be downgraded whether at the time of, or within 3 Months of, the date of announcement of a Reconstruction, directly as a result of any merger involving the Company. Furthermore the resulting entity of any merger otherwise permitted by paragraphs (a) and (b) of this Clause 23.8, if it is not an Obligor, shall assume the obligations of any Obligor which is the subject of the merger. |
-
70 -
|
23.9
|
Change of business | |
| (a) |
None of the Obligors shall make a substantial change to the general
nature of its business from that carried on at the date of this
Agreement.
|
|
| (b) |
None of the Obligors shall cease to carry on its business (save
(except in the case of the Company which shall in no event cease
or
substantially change its business) unless another Obligor continues
to
operate any such business).
|
|
| (c) |
The
Company shall procure that no substantial change is made to the general
nature of the business of any of its Material Subsidiaries from that
carried on at the date of this Agreement and that there shall be
no
cessation of such business (provided
that
(if BidCo is a Material Subsidiary) should BidCo cease to own any
assets
in accordance with the terms of this Agreement, such cessation shall
not
in itself constitute a breach of this paragraph (c) of Clause 23.9).
|
|
| 23.10 |
Insurance
|
The
Obligors shall (and the Company shall ensure that each of its Material
Subsidiaries (other than the Obligors) shall) maintain insurances on and in
relation to its business and assets with reputable underwriters or insurance
companies against those risks and to the extent as is usual for companies
carrying on the same or substantially similar business where such insurance
is
available on reasonable commercial terms.
| 23.11 |
Environmental
Compliance
|
The
Company shall (and the Company shall ensure that each of its Subsidiaries and
(following the Acquisition of Target Date but prior to the Acquisition of BidCo
Date) BidCo and its Subsidiaries shall) comply in all material respects with
all
Environmental Law and obtain and maintain any Environmental Permits and take
all
reasonable steps in anticipation of known or expected future changes to or
obligations under the same, in each case where failure to do so might reasonably
be expected to have a Material Adverse Effect.
| 23.12 |
Environmental
Claims
|
The
Company shall inform the Agent in writing as soon as reasonably practicable
upon
becoming aware of the same:
| (a) |
if
any Environmental Claim has been commenced or (to the best of the
Company's knowledge and belief) is threatened against any member
of the
Group or (prior to the Acquisition of BidCo Date) BidCo and its
Subsidiaries which is likely to be determined adversely to the member
of
the Group (or, following the Acquisition of Target Date but prior
to the
Acquisition of BidCo Date, BidCo or its Subsidiary); or
|
|
| (b) | of any facts or circumstances which will or are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Group or (prior to the Acquisition of BidCo Date) BidCo and its Subsidiaries, |
where
the
claim would be reasonably likely, if finally determined against that member
of
the Group (or, following the Acquisition of Target Date but prior to the
Acquisition of BidCo Date, BidCo or its Subsidiary), to have a Material Adverse
Effect.
-
71 -
| 23.13 |
Transactions
with Affiliates
|
Each
Obligor shall (and the Company shall ensure that its Subsidiaries shall) ensure
that any transactions with its respective Affiliates are on terms that are
fair
and reasonable and no less favourable to such Obligor or such Subsidiary than
it
would obtain in a comparable arm's-length transaction with a person who is
not
an Affiliate (unless such transaction relates to the provision of funds for
the
Offer as between each Obligor, its Subsidiaries and its or their respective
Affiliates).
| 23.14 |
Pari
passu ranking
|
Each
Obligor shall ensure that at all times its payment obligations under the Finance
Documents rank at least pari passu with the claims of all its other unsecured
and unsubordinated creditors, except for obligations mandatorily preferred
by
law or regulation applying to companies generally from time to
time.
| 23.15 |
Subsidiary
Financial Indebtedness
incurrence
|
If,
at
any time, the aggregate outstanding principal amount of Subsidiary Financial
Indebtedness exceeds 15 per cent. of the Consolidated Total Assets, then for
so
long as such remains the case, no Subsidiary of the Company or (following the
Acquisition of Target Date but prior to the Acquisition of BidCo Date), BidCo
and its Subsidiaries (except Subsidiaries described in paragraph (f) of the
definition of "Subsidiary
Financial Indebtedness"
below)
may, directly or indirectly, create, incur, assume or otherwise become liable
with respect to any other Financial Indebtedness.
"Subsidiary
Financial Indebtedness"
means
Financial Indebtedness of a Subsidiary of the Company or following the
Acquisition of Target Date but prior to the Acquisition of BidCo Date, BidCo
and
its Subsidiaries other than:
| (a) | Financial Indebtedness of a Subsidiary of the Company that is an Excluded Subsidiary Guarantor; | |
| (b) |
Financial
Indebtedness of a Subsidiary of the Company as disclosed in Schedule
13
(Existing
Financial Indebtedness)
including, for the avoidance of doubt, the Existing Target Debt
provided
that:
|
| (i) |
the principal
amount of such Financial Indebtedness shall not be increased above
the
principal amount thereof outstanding immediately prior to any extension,
refunding or refinancing; and
|
||
| (ii) |
the
aggregate amount of all Financial Indebtedness that has been extended,
refunded or refinanced under this paragraph (b) shall not exceed
US$250,000,000 (or the equivalent thereof if denominated in another
currency),
|
for
the
avoidance of doubt, it is understood that:
(X) if
any
such Financial Indebtedness is successively extended, refinanced or refunded,
only the Financial Indebtedness outstanding after giving effect to all such
successive extensions, refinancing and refundings shall be counted against
the
foregoing amount; and
-
72 -
(Y) any
Financial Indebtedness incurred in a currency other than US Dollars pursuant
to
this paragraph (b) shall continue to be permitted under this paragraph (b),
notwithstanding any fluctuation in currency values, as long as the outstanding
principal amount of such Financial Indebtedness (denominated in its original
currency) does not exceed the maximum amount of such Financial Indebtedness
(denominated in such currency) permitted to be outstanding on the date such
Financial Indebtedness was incurred);
|
(c)
|
Financial
Indebtedness of a Subsidiary of the Company owed to the Company or
another
Subsidiary of the Company;
|
(d) Financial
Indebtedness of a Subsidiary of the Company that was:
(i) outstanding
at the time such Subsidiary became a Subsidiary of the Company; or;
(ii) contractually
required to be incurred by such Subsidiary at such time,
provided
that
such
Financial Indebtedness shall not have been incurred in contemplation of such
Subsidiary becoming a Subsidiary of the Company and provided
that
there is
no recourse to any member of the Group other than such Subsidiary following
the
date falling 60 days after such Subsidiary became a Subsidiary of the
Company;
|
(e)
|
any
Financial Indebtedness extending the maturity of the Financial
Indebtedness referred to in paragraph (d) above, or any refunding
or
refinancing of the same, provided
that the
principal amount of such Financial Indebtedness shall not be increased
above the principal amount thereof outstanding immediately prior
to such
extension, refunding or
refinancing;
|
|
(f)
|
Financial
Indebtedness of a Subsidiary of the Company
which:
|
|
(i)
|
has
been formed for the purpose of, and whose primary activities are,
the
issuance or other incurrence of debt obligations to Persons other
than
Affiliates of the Company and the lending or other advance of the
net
proceeds of such debt obligations (whether directly or indirectly)
to the
Company or any Guarantor which is a Holding Company (as defined in
sub-Clause 26.3
(Additional
Guarantors));
and
|
|
(ii)
|
has
no significant assets other than debt obligations, promissory notes
and
other contract rights in respect of funds advanced to the Company
or such
Guarantors; and
|
|
(g)
|
Financial
Indebtedness of a Subsidiary of the Company incurred pursuant to
or in
connection with any pooling agreements in place within a bank or
financial
institution, but only to the extent of offsetting credit balances
of the
Company or its Subsidiaries pursuant to such pooling
arrangement.
|
-
73 -
|
(h)
|
Financial
Indebtedness of BidCo owing to the Company or any of its Subsidiaries
in
respect of any funds that have been lent to BidCo for the purpose
of
funding the Offer.
|
For
the
purposes of this Clause 23.15
(Subsidiary
Financial Indebtedness incurrence):
"Excluded
Subsidiary Guarantor"
means
any Subsidiary of the Company that becomes a Guarantor (pursuant to Clause
26.3
(Additional
Guarantors))
if
legal opinions and other evidence are delivered to the Agent sufficient to
establish to the reasonable satisfaction of the Agent and its legal adviser
that
the obligations of such Guarantor under this Agreement rank and will continue
to
rank at least pari passu with all other unsecured and unsubordinated Financial
Indebtedness of such Guarantor, including in a bankruptcy or insolvency
proceeding.
"Consolidated
Total Assets"
means,
at any time, the total assets of the Company and its Subsidiaries, as determined
in accordance with Spanish GAAP by reference to the most recent financial
statements supplied by the Company pursuant to Clause 21.1
(Financial
Statements)
or any
Compliance Certificate provided pursuant to Clause 21.2
(Compliance
Certificate),
provided
that
such
financial statements or Compliance Certificate, as the case may be, shall be
adjusted to: (i) reflect the acquisition of any Subsidiary; and (ii) (to the
extent not already included) include the total assets of BidCo and its
Subsidiaries, as determined in accordance with Spanish GAAP.
| 23.16 |
Payment
restrictions affecting
Subsidiaries
|
The
Company shall not enter into or suffer to exist, or permit any of its
Subsidiaries (or, following the Acquisition of Target Date but prior to the
Acquisition of BidCo Date, BidCo and its Subsidiaries) to enter into or suffer
to exist, any agreement or arrangement directly limiting the ability of any
of
its Subsidiaries to:
(a) declare
or pay dividends or other distributions in respect of its or their respective
equity interests in a Subsidiary, except any agreement or arrangement entered
into by a person prior to such person becoming a Subsidiary, in which case
the
Company shall use its reasonable endeavours to remove such limitations. If
however, such limitations are reasonably likely to affect the ability of the
Company to satisfy its payment obligations under this Agreement, the Company
shall use its best endeavours to remove such limitations as soon as possible;
or
(b) repay
or
capitalise any intercompany indebtedness owed by any Subsidiary to any Obligor
and, for the avoidance of doubt, subordination provisions shall not be
considered a limitation for the purpose of this Clause 23.16.
The
provisions of paragraphs (a) and (b) above shall not restrict:
|
(i)
|
any
agreements or arrangements that are binding upon any person in connection
with a Permitted Securitisation and any agreement or arrangement
that
limits the ability of any Subsidiary of the Company that transfers
receivables and related assets pursuant to a Permitted Securitisation
to
distribute or transfer receivables and related assets provided
that,
in each case, all such agreements and arrangements are customarily
required by the institutional sponsor or arranger of such Permitted
Securitisation in similar types of documents relating to the purchase
of
receivables and related assets in connection with the financing
thereof;
|
-
74 -
|
(ii)
|
customary
provisions in joint venture agreements relating to dividends or other
distributions in respect of such joint venture or the securities,
assets
and revenues of such joint venture;
and
|
|
(iii)
|
restrictions
on distributions applicable to Subsidiaries of the Company that are
the
subject of agreements to sell or otherwise dispose of the stock or
assets
of such Subsidiaries pending such sale or other disposition.
|
| 23.17 |
Notification
of adverse change in
Ratings
|
The
Company shall promptly notify the Agent of any change in its Ratings or
Outlook.
| 23.18 | The Offer | ||
| (a) |
The Company shall ensure, and shall procure that BidCo shall
ensure,
that the Announcement and the Offer Document and any other Offer
Documents
contain all the material terms and conditions of the Offer.
|
||
| (b) |
The Company shall not, and shall procure that BidCo shall not,
without the prior written consent of Citigroup Global Markets Limited
and
The Royal Bank of Scotland plc (such consent not to be unreasonably
withheld or delayed):
|
||
| (i) |
waive, amend, revise, withdraw, agree, declare or accept or
treat as
satisfied or decide not to enforce, in whole or in part, any condition
of
the Offer as to the level of acceptances from those entitled to
accept the
terms of the Offer, where to do so would result in such level being
less
than 50.01 per cent. of the total possible acceptances available;
and
|
||
| (ii) |
issue or allow to be issued on its behalf any press release
or other
publicity which refers to any Facility or any Finance Party unless
the
publicity is required by any provision of applicable law or any
stock
exchange, listing authority or comparable regulatory entity. In
that case
the Company shall notify Citigroup Global Markets Limited and The
Royal
Bank of Scotland plc as soon as practicable upon becoming aware
of the
requirement, shall consult with Citigroup Global Markets Limited
and The
Royal Bank of Scotland plc on the terms of the reference and shall
have
regard to (but, for the avoidance of doubt, shall not be required
to
include) any timely comments of Citigroup Global Markets Limited
and The
Royal Bank of Scotland plc.
|
||
| (c) |
The
Company shall comply with the Corporations Act and all other applicable
laws in all material respects in the context of the Offer.
|
||
| (d) |
The
Company shall keep Citigroup Global Markets Limited and The Royal
Bank of
Scotland plc informed as to the status and progress of the Offer
and, in
particular, will from time to time and promptly upon reasonable
request
give to Citigroup Global Markets Limited and The Royal Bank of
Scotland
plc details of the current level of acceptances of the Offer (to
the
extent available and permitted by the applicable laws of Australia
and
relevant regulations).
|
||
-
75 -
| (e) |
The
Company shall inform Citigroup Global Markets Limited and The Royal
Bank
of Scotland plc in advance as
to:
|
||
| (i) |
the
terms and conditions of any assurance or undertaking proposed to
be given
by or on behalf of any member of the Group (or, so far as the Company
is
aware, the Target or any of its Subsidiaries) to any person for the
purpose of obtaining any authorisation necessary or desirable in
connection with the Offer; and
|
||
|
(ii)
|
any terms or conditions proposed in connection with any authorisation
necessary or desirable in connection with the Offer.
|
| (f) | If any member of the Group becomes aware (whether through notice from any Finance Party or otherwise) of a circumstance or event which is or could reasonably be construed to be covered by any condition of the Offer which, if not waived, would entitle BidCo (with the consent of any other party, if needed) to lapse the Offer, the Company shall promptly notify Citigroup Global Markets Limited and The Royal Bank of Scotland plc. | ||
| (g) | If BidCo becomes entitled to initiate the compulsory acquisition procedures set out in Part 6A.1 of the Corporations Act in relation to the shares in Target to which the Offer relates, the Company shall procure that BidCo: | ||
| (i) |
shall
initiate those procedures promptly (and in any event within 30 days
after
becoming entitled to do so); and
|
||
|
(ii)
|
shall
use all reasonable endeavours to acquire 100 per cent. of the shares
to
which the compulsory acquisition procedures apply within 12 weeks
after
initiating those procedures.
|
||
|
(h)
|
If
BidCo is required by any holder of the Target's shares to acquire
that
holder's shares pursuant to the compulsory buy-out provisions of
the
Corporations Act, the Company shall procure that BidCo will promptly
comply with the requirements of the Corporations Act in that
respect.
|
| 23.19 |
Consultation
regarding further financing
|
The
Company shall consult (but, for the avoidance or doubt, with no obligation
to
act on the outcome of such consultation) for a period of at least 5 days with
Citigroup Global Markets Limited and The Royal Bank of Scotland plc, should
it
(or any of its Affiliates) seek to raise financing for the purpose of the Offer
other than (i) the Facilities and (ii) the Other Agreed Offer Facilities (in
a
maximum amount of US$3,800,000,000).
| 23.20 |
NOF
|
The
Company shall as soon as reasonably practicable after the date of this Agreement
and in any event prior to any interest payment hereunder falling due, provide
the Agent with a copy of form PE 1 stamped by the Bank of Spain (Banco de
España), whereby it assigns a Financial Operation Number ("NOF")
to the
Facilities.
-
76 -
|
24.
|
EVENTS
OF DEFAULT
|
Each
of
the events or circumstances set out in this Clause 24
is an
Event of Default.
| 24.1 |
Non-payment
|
An
Obligor does not pay on the due date any amount payable pursuant to a Finance
Document at the place at and in the currency in which it is expressed to be
payable unless such failure to pay is caused by an administrative error or
technical difficulties within the banking system in relation to the transmission
of funds and payment is made within three Business Days of its due date.
| 24.2 |
Financial
Covenants
|
Any
requirement of Clause 22 (Financial
Covenants)
is not
satisfied.
| 24.3 |
Other
obligations
|
| (a) |
An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 24.1
(Non-payment)
and Clause 22
(Financial
covenants)).
|
|
| (b) | No Event of Default under paragraph (a) of this Clause 24.3 above will occur if the failure to comply is capable of remedy and is remedied within fifteen Business Days of the Agent giving written notice to the Company or the Company becoming aware of the failure to comply, whichever is the earlier. |
| 24.4 |
Misrepresentation
|
Any
representation or statement made or deemed to be made by an Obligor in the
Finance Documents or any other document delivered by or on behalf of any Obligor
under or in connection with any Finance Document is or proves to have been
incorrect or misleading in any material respect when made or deemed to be
made.
|
24.5
|
Cross acceleration | |
| (a) |
Any Financial Indebtedness of any Obligor or member of the Group
or
(following the Acquisition of Target Date but prior to the Acquisition
of
BidCo Date) BidCo or its Subsidiaries is not paid when due nor within
any
originally applicable grace period.
|
|
| (b) |
Any Financial Indebtedness of any Obligor or member of the Group
or
(following the Acquisition of Target Date but prior to the Acquisition
of
BidCo Date) BidCo or its Subsidiaries is declared to be or otherwise
becomes due and payable prior to its specified maturity as a result
of an
event of default (however described).
|
|
| (c) | No Event of Default will occur under this Clause 24.5 if the aggregate amount of Financial Indebtedness falling within paragraphs (a) and (b) of this Clause 24.5 above is less than US$75,000,000 (or its equivalent in any other currency or currencies). | |
|
24.6
|
Insolvency
|
|
| (a) |
Any of the Obligors or Material Subsidiaries is unable or admits
inability to pay its debts as they fall due or, by reason of actual
or
anticipated financial difficulties, suspends making payments on
any of its
debts or commences negotiations with one or more of its creditors
with a
view to rescheduling any of its
indebtedness.
|
|
-
77 -
| (b) |
The value of the assets of any of the Obligors or Material
Subsidiaries is less than its liabilities (taking into account
contingent
and prospective liabilities).
|
|
| (c) | A moratorium is declared in respect of any indebtedness of any of the Obligors or Material Subsidiaries. |
| 24.7 |
Insolvency
proceedings
|
Any
corporate action, legal proceedings or other procedure or step is taken in
relation to:
| (a) |
a moratorium of any indebtedness, winding-up, dissolution,
administration or reorganisation (by way of voluntary arrangement,
scheme
of arrangement or otherwise) of any of the Obligors or Material
Subsidiaries, other than a solvent liquidation or reorganisation
of any of
the Material Subsidiaries which are not Obligors;
|
|
| (b) |
a composition, assignment or arrangement with any class of
creditor
of any of the Obligors or Material Subsidiaries;
|
|
| (c) | the appointment of a liquidator (other than in respect of a solvent liquidation of any of the Material Subsidiaries which are not Obligors), receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any of the Obligors or Material Subsidiaries or any of their assets; |
or
any
analogous procedure or step is taken in any jurisdiction.
This
paragraph shall not apply to any winding-up petition (or equivalent procedure
in
any jurisdiction) which is frivolous or vexatious and is discharged, stayed
or
dismissed within 60 days of commencement.
| 24.8 |
Expropriation
and sequestration
|
Any
expropriation or sequestration affects any asset or assets of any Obligor or
any
Material Subsidiary and has a Material Adverse Effect.
|
24.9
|
Creditors'
process and enforcement of Security
|
|
| (a) |
Any Security is enforced against any Obligor or any Material
Subsidiary.
|
|
| (b) | Any attachment, distress or execution affects any asset or assets of any Obligor or any Material Subsidiary which is reasonably likely to cause a Material Adverse Effect. | |
| (c) | No Event of Default under paragraphs (a) or (b) of this Clause 24.9 above will occur if: | |
| (i) |
the
action is being contested in good faith by appropriate
proceedings;
|
||
| (ii) |
the principal amount of the indebtedness secured by such Security
or
in respect of which such attachment, distress or execution is carried
out
represents less than US$75,000,000 (or its equivalent in any other
currency or currencies); and
|
||
| (iii) | the enforcement proceedings, attachment, distress or execution is or are discharged within 60 days of commencement. |
-
78 -
| 24.10 |
Ownership
of Obligors
|
Any
Obligor (other than the Company) ceases to be a Subsidiary of the Company.
| 24.11 |
Failure
to comply with judgment
|
Any
Obligor or any Material Subsidiary fails to comply with or pay any sum due
from
it under any judgement or any order made or given by any court of competent
jurisdiction, unless payment of any such sum is suspended pending an
appeal.
| 24.12 |
Unlawfulness
|
It
is or
becomes unlawful for an Obligor to perform any of its obligations under the
Finance Documents where non-performance is reasonably likely to cause a Material
Adverse Effect.
| 24.13 |
Repudiation
|
An
Obligor repudiates a Finance Document or evidences an intention to repudiate
a
Finance Document.
| 24.14 |
Material
adverse change
|
Any
material adverse change arises in the financial condition of the Group taken
as
a whole or (following the Acquisition of Target Date but prior to the
Acquisition of BidCo Date only) the Group and the Target Group taken as a whole,
which the Majority Lenders reasonably determine would result in the failure
by
any Obligor to perform its payment obligations under any of the Finance
Documents.
|
24.15
|
BidCo
|
|
| (a) |
If
at any time following the date falling 6 Months after the First
Utilisation Date, BidCo is not a wholly-owned Subsidiary of the
Company,
unless at such time BidCo has acceded to this Agreement as an Additional
Guarantor.
|
|
| (b) |
If
at any time BidCo is not a direct or indirect Subsidiary of Cemex
Parent.
|
| 24.16 |
Acceleration
|
On
and at
any time after the occurrence of an Event of Default which is continuing the
Agent may, while such Event of Default is continuing and shall if so directed
by
the Majority Lenders, by notice to the Company:
| (a) |
cancel the Total Commitments whereupon they shall immediately
be
cancelled;
|
|
| (b) | declare that all or part of the Loans, together with accrued interest, and all other amounts accrued under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or |
declare
that all or part of the Loans be payable on demand, whereupon they shall
immediately become payable on demand by the Agent on the instructions of the
Majority Lenders.
-
79 -
| 24.17 |
Clean
Up Period
|
Notwithstanding
any other term of this Agreement, if during the Clean-Up Period a matter or
circumstance exists in respect of the Target and/or any member of the Target
Group which would constitute a breach under the Finance Documents including:
| (i) |
a
breach of any representation or warranty made in Clause 20
(Representations);
|
|
| (ii) |
a breach of any covenant set out in Clause 23
(General
Undertakings);
or
|
|
| (iii) |
a Default,
|
such
matter or circumstance will not constitute a breach of such representation
or
warranty or covenant or a Default until after the end of the Clean-Up Period,
provided
that
reasonable steps are being taken to cure such matter or circumstance (following
the Company or BidCo becoming aware of the same), unless such matter or
circumstance (1) could reasonably be expected to have a Material Adverse Effect
or (2) is not capable of cure or if capable of cure, no reasonable steps are
being taken to cure and, in each case, the matter or circumstance has been
procured by, or approved by, the Company, Cemex Parent or BidCo.
-
80 -
SECTION
9
CHANGES
TO PARTIES
| 25. |
CHANGES
TO THE LENDERS
|
| 25.1 |
Assignments
and transfers by the
Lenders
|
Subject
to this Clause 25,
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 any Utilisation, |
to
another bank or financial institution or to a trust, fund or other entity which
is regularly engaged in or established for the purpose of making, purchasing
or
investing in loans, securities or other financial assets (the "New
Lender"),
provided
that no
Lender
may transfer or assign any of its rights, benefits or obligations under the
Finance Documents to any U.S. Lender or enter into a sub-participation agreement
in respect of such rights, benefits or obligations with a U.S.
Lender.
| 25.2 |
Conditions
of assignment or transfer
|
| (a) |
The Borrower must be notified no later than one Business Day
prior to
the proposed date of any assignment or transfer pursuant to this
Clause
25.1
(Assignments
and transfers by the Lenders).
|
|
| (b) | An assignment will be effective only 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. |
| (c) |
A
transfer will be effective only if the procedure set out in Clause
25.5
(Procedure
for transfer)
is complied with.
|
||
| (d) |
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
14
(Tax
gross-up and indemnities)
or Clause 15
(Increased
costs),
then
the New Lender or Lender acting through its new Facility Office
is
entitled to receive payment under those Clauses only 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.
|
||
-
81 -
| (e) | In addition to the other assignment rights provided in this Clause 25, each Lender may assign, as collateral or otherwise, any of its rights under this Agreement (including rights to payments of principal or interest on the Loans) to any trustee for the benefit of the holders of such Lender's securities provided that no such assignment shall release the assigning Lender from any of its obligations under this Agreement | ||
| 25.3 |
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 US$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.
|
25.4
|
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.
|
-
82 -
(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 25;
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.
|
|
25.5
|
Procedure for transfer | ||
| (a) |
Subject to the conditions set out in Clause 25.2
(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
Company.
|
||
| (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". | ||
|
25.6
|
Procedure for assignment | ||
| (a) |
Subject to the conditions set out in Clause 25.2
(Conditions
of assignment or transfer)
an assignment may be effected in accordance with paragraph (c) below
when
the Agent executes an otherwise duly completed Assignment Agreement
delivered to it by the Existing Lender and the New Lender. The Agent
shall, subject to paragraph (b) below, as soon as reasonably practicable
after receipt by it of a duly completed Assignment Agreement appearing
on
its face to comply with the terms of this Agreement and delivered
in
accordance with the terms of this Agreement, execute that Assignment
Agreement.
|
||
-
83 -
| (b) |
The Agent shall only be obliged to execute an Assignment Agreement
delivered to it by the Existing Lender and the New Lender upon its
completion of all "know your customer" or other checks relating to
any
person that it is required to carry out in relation to the assignment
to
such New Lender.
|
||
| (c) |
On the Transfer Date:
|
||
| (i) |
the Existing Lender will assign absolutely to the New Lender
its
rights under the Finance Documents;
|
||
| (ii) |
the Existing Lender will be released from the obligations (the
"Relevant
Obligations")
expressed to be the subject of the release in the Assignment Agreement;
and
|
||
| (iii) |
the New Lender shall become a Party as a "Lender" and will be
bound
by obligations equivalent to the Relevant Obligations.
|
||
| (d) | Lenders may utilise procedures other than those set out in this Clause 25.6 to assign their rights under the Finance Documents provided that they comply with the conditions set out in Clause 25.2 (Conditions of assignment or transfer). | ||
| 25.7 |
Copy
of Transfer Certificate to
Borrower
|
The
Agent
shall, as soon as reasonably practicable after it has received a Transfer
Certificate, send to the Company a copy of that Transfer
Certificate.
|
25.8
|
Disclosure of information | ||
| (a) |
Any Lender may disclose to any of its Affiliates and any other
person:
|
||
|
(i)
|
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;
|
||
| (ii) |
with
(or through) whom that Lender enters into (or may potentially enter
into)
any sub-participation in relation to, or any other transaction
under which
payments are to be made by reference to, the Finance Documents;
or
|
||
|
(iii)
|
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
(in the
case of paragraphs (i) and (ii) only) the person to whom the information is
to
be given has entered into a Confidentiality Undertaking.
| (b) | Any Lender may also disclose the size and term of the Facilities and the name of each of the Obligors to any investor or a potential investor in a securitisation (or similar transaction of broadly equivalent economic effect) of that Lender's rights or obligations under the Finance Documents provided that the person to whom the information is to be given has entered into a Confidentiality Undertaking. |
-
84 -
| 25.9 |
Interest
|
All
interest accrued in the Interest Period in which a transfer is effective shall
be paid to the Existing Lender.
|
26.
|
CHANGES
TO THE OBLIGORS
|
| 26.1 |
Assignment
and Transfers by Obligors
|
No
Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
|
26.2
|
Additional Borrowers | ||
| (a) |
Subject
to compliance with the provisions of paragraphs (b) and (c) of Clause
21.6
("Know
your client"
checks),
the Company may request that any of its wholly owned Subsidiaries
which is
not a dormant Subsidiary becomes an Additional Borrower. That Subsidiary
shall become an Additional Borrower if:
|
||
| (i) | either: | ||
|
(A)
|
(if
at the time the Company is a Guarantor hereunder) the Majority Lenders
approve the addition of that Subsidiary;
or
|
|
(B)
|
(if
at the time the Company is not a Guarantor hereunder) the Lenders
approve
the addition of that Subsidiary:
|
(ii)
the
Company and that Subsidiary deliver to the Agent a duly completed and executed
Accession Letter;
(iii)
the
Company confirms that no Default is continuing or would occur as a result of
that Subsidiary becoming an Additional Borrower; and
(iv)
the
Agent
has received all of the documents and other evidence listed in Part II of
Schedule 2 (Conditions
precedent required to be delivered by an Additional Obligor)
in
relation to that Additional Borrower, each in form and substance satisfactory
to
the Agent.
(b)
The
Agent
shall notify the Company and the Lenders promptly upon being satisfied that
it
has received (in form and substance satisfactory to it) all the documents and
other evidence listed in Part II of Schedule 2 (Conditions
precedent required to be delivered by an Additional Obligor).
| 26.3 |
Additional
Guarantors
|
(a)
Subject
to compliance with the provisions of paragraphs (b) and (c) of Clause
21.6
("Know
your client"
checks),
the Company may request that it or any of its wholly owned Subsidiaries become
an Additional Guarantor.
-
85 -
(b)
The
Company may request that it or any of its Subsidiaries becomes an Additional
Guarantor by:
(A) the
Company delivering to the Agent a duly-completed and executed Accession Letter;
and
(B)
the
Agent
receiving from the Company all of the documents and other evidence referred
to
in Part II of Schedule 2 (Conditions
Precedent required to be delivered by an Additional Obligor)
in
relation to that Additional Guarantor.
(c)
The
Agent
shall notify the Company 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 Obligor).
| 26.4 |
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 Clause 26.3
(Additional
Guarantors);
or
(b)
it
notifies the Agent that it has no assets and provides the Agent with a
certificate signed by a director of the Company confirming that it has no
assets,
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
26.4;
and
|
|
(iii)
|
the
Company may not resign as a Guarantor without the consent of all
Lenders.
|
| 26.5 |
Resignation
of a Borrower
|
(a)
The
Company may request that a Borrower (other than the Company) ceases to be a
Borrower by delivering to the Agent a letter of resignation signed by an
Authorised Signatory of the Company and the relevant Borrower, which confirms
that the requirements of paragraph (b) below are met.
(b)
The
Agent
shall accept such a resignation and notify the Company and the Lenders of its
acceptance if:
(i)
no
Default is continuing or would result from the acceptance of the resignation
(and the Company has confirmed this is the case); and
(ii)
the
Borrower is under no actual or contingent obligations as a Borrower under any
Finance Documents,
whereupon
that company shall cease to be a Borrower and shall have no further rights
or
obligations under the Finance Documents.
-
86 -
| 26.6 |
Removal
of Guarantor
|
(a)
At
any
time following the date (if any) on which a member of the Group has acceded
to
this Agreement as an Additional Guarantor, in the event that the Company
delivers to the Agent a certificate (a "Guarantor
Removal Certificate")
signed
by two authorised signatories of the Company confirming that (as at the date
of
the Guarantor Removal Certificate) a substantial part of the Net Borrowings
of
the Group:
(i)
is
guaranteed only by the Company and/or any other guarantors which are not
Guarantors (whether, for the avoidance of doubt, as a result of the repayment,
redemption, maturity or cancellation of any Financial Indebtedness, or any
agreement with any creditor of the Group or as a result of any other reason);
and/or
(ii)
(A)
is
subject to provisions in any agreements or documents (including this Agreement)
with any creditor of the Group (or any other party) relating to any Financial
Indebtedness of the Group, which allow for the removal of all or any of the
Guarantors as guarantors pursuant to such agreements or documents (other than
the Company, such that the only remaining guarantors of such Financial
Indebtedness would in each case be the Company and/or any other guarantors
which
are not Guarantors), and (B) the conditions (if any) to such removal pursuant
to
such agreements or documents have been met by the relevant Guarantor, and (C)
any or all of the Guarantors (other than the Company) has or have been removed
(or will be so removed at a date which is not later than the date scheduled
for
removal of the relevant Guarantor pursuant to the relevant Guarantor Removal
Certificate) as guarantors of the relevant Financial Indebtedness pursuant
to
such agreements or other documents,
the
obligations of the relevant Guarantor(s) (other than the Company) under the
guarantee and indemnity contained in Clause 19
(Guarantee
and Indemnity)
shall
terminate and such Guarantor(s) shall be deemed to be discharged in full, and
shall cease to be Guarantor(s), effective as at the date indicated in the
Guarantor Removal Certificate, which date shall not be earlier than 10 days
of
receipt by the Agent of the Guarantor Removal Certificate, provided always
that
any such termination and discharge pursuant to this Clause 26.6
would
not result in a downgrading of the then current Rating of the Company assigned
by S&P or Fitch.
(b)
For
the
purposes of this Clause 26.6,
a
"substantial
part"
shall
mean an aggregate amount equal to or greater than 85 per cent. of the aggregate
value of the Net Borrowings of the Group.
The
"Net
Borrowings"
of the
Group referred to in this Clause shall be determined by reference to the most
recent Compliance Certificate delivered to the Agent pursuant to Clause
21.2
(Compliance
Certificate)
at the
date of the relevant Guarantor Removal Certificate.
-
87 -
(c)
For
the
avoidance of doubt, the Guarantor Removal Certificate shall also:
|
(i)
|
specify
the percentage of the Net Borrowings of the Group which is guaranteed
only
by the Company and/or any other guarantors which are not
Guarantors;
|
|
(ii)
|
specify
the percentage of the Net Borrowings of the Group which is subject
to
provisions in agreements or documents which allow for the removal
of the
Guarantors (other than the Company);
and
|
|
(iii)
|
certify
that the conditions (if any) to the removal of such Guarantors in
such
agreements or documents have been met by the relevant member of the
Group
as at the date of the Guarantor Removal
Certificate;
|
|
(iv)
|
certify
that the relevant Guarantor(s) has or have been removed (or will
be so
removed at a date which is not later than the date scheduled for
removal
of the relevant Guarantor pursuant to the relevant Guarantor Removal
Certificate) as Guarantor(s) of the relevant Financial Indebtedness;
and
|
|
(v)
|
confirm
that neither S&P nor Fitch will downgrade the then current Rating
assigned to the Company as a result of the removal of the relevant
Guarantor(s) as Guarantor(s) under this
Agreement.
|
(d)
Following
delivery of the Guarantor Removal Certificate to the Agent, the Company shall
provide notice of the removal, and termination of the obligations of the
Guarantors (other than the Company) to the Finance Parties, in accordance with
Clause 32
(Notices)
of the
Agreement.
| 26.7 |
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.
-
88 -
SECTION
10
THE
FINANCE PARTIES
|
27.
|
ROLE
OF THE AGENT AND THE
ARRANGER
|
| 27.1 |
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.
| 27.2 |
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 Company'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.
| 27.3 |
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.
| 27.4 |
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.
| 27.5 |
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.
-
89 -
| 27.6 |
Rights
and discretions
|
(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 36.1
(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 Clause 24.1
(Non-payment));
|
|
(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 Company (other than a Utilisation Request)
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.
|
| 27.7 |
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.
|
-
90 -
|
(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.
|
| 27.8 |
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.
|
| 27.9 |
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
and any
officer, employee or agent of the Agent may rely on this Clause
27
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.
|
-
91 -
| 27.10 |
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).
|
| 27.11 |
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 Company.
|
|
(b)
|
Alternatively
the Agent may resign by giving notice to the other Finance Parties
and the
Company, in which case the Majority Lenders (after consultation
with the
Company) 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 Company) 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 27.11.
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 Company, 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.
|
| 27.12 |
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.
|
-
92 -
|
(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.
|
|
27.13
|
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).
|
|
|
27.14
|
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.
|
|
| 27.15 |
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 Company) appoint another Lender or
an Affiliate
of a Lender to replace that Reference
Bank.
|
|
-
93 -
|
27.16
|
Agent's
Management Time
Any
amount payable to the Agent under Clause 16.3
(Indemnity
to the Agent)
and Clause 27.10
(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 Company and the
Lenders, and
is in addition to any fee paid or payable to the Agent under
Clause
13
(Fees).
|
|
| 27.17 |
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.
|
|
|
|
||
|
28
|
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 (but without prejudice to the terms of Clause 14.3
(Tax
indemnity)).
|
|
| 29. |
SHARING
AMONG THE FINANCE PARTIES
|
|
| 29.1 |
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 30
(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 30
(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 30.5 (Partial payments). | |
-
94 -
29.2
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 30.5
(Partial
payments).
29.3
Recovering
Finance Party's rights
(a) On
a
distribution by the Agent under Clause 29.2
(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.
29.4
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 29.2
(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.
29.5
Exceptions
(a)
This
Clause 29
shall
not apply to the extent that the Recovering Finance Party would not, after
making any payment pursuant to this Clause 29,
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.
|
-
95 -
SECTION
11
ADMINISTRATION
30.
PAYMENT
MECHANICS
30.1
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.
30.2
Distributions
by the Agent
Each
payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 30.3
(Distributions
to an Obligor),
Clause
30.4
(Clawback)
and
Clause 27.17
(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).
30.3 Distributions
to an Obligor
The
Agent
may (with the consent of the Obligor or in accordance with Clause 31
(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.
30.4
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.
-
96 -
| 30.5 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.
|
|
|
(b)
|
Paragraphs
(a) and (b) above will override any appropriation made by an
Obligor.
|
|
| (c) |
The
Lenders hereby expressly agree that the Agent shall not
apply any amount received in accordance with paragraph (a) above
to
discharge the obligations of an Obligor owed to a Lender if such
partial
payment received by the Agent is as a result of that Lender being
considered as a subordinated creditor by operation of any insolvency
law.
|
|
| 30.6 |
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.
|
|
|
|
|
|
| 30.7 | 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 an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date. | |
| 30.8 |
Currency
of account
|
|
| (a) |
Subject
to paragraphs (b) to (e) below, the Base Currency is
the currency of account and currency of 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.
|
|
-
97 -
|
(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. | |
| 30.9 |
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
Company); 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).
|
||
| (iii) |
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 Company) 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.
|
||
| 31. |
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. |
||
| 32. |
NOTICES
|
||
| 32.1 |
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 32.5
(Electronic
communication))
by email.
|
||
| 32.2 |
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:
|
||
-
98 -
| (a) | in the case of the Company, 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.
|
|||
| 32.3 | 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,
|
||
| (iii) |
and,
if a particular department or officer is specified as
part of its address details provided under Clause 32.2
(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 Company
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
Company in accordance with this Clause 32
will be deemed to have been made or delivered to each of the
Obligors.
|
||
| (e) |
Any
notice delivered in accordance with this Clause 32
after 4pm local time in the place of delivery on a given day
shall be
deemed to have been received on the next Business Day after such
day.
|
||
| 32.4 |
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 32.2
(Addresses)
or changing its own address or fax number, the Agent shall notify
the
other Parties. |
||
-
99 -
| 32.5 |
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.
|
||
| 32.6 |
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.
|
||
| 32.7 | Obligor Agent | ||
| (a) |
Each
Obligor (other than the Company) by its execution of
this Agreement or an Accession Letter (as the case may be) irrevocably
appoints the Company to act on its behalf as its agent in relation
to the
Finance Documents and irrevocably authorises (i) the Company
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 or
Conversion
Requests), 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 Company 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 or Conversion Requests) or executed or made
such
agreements or received any notice, demand or other
communication.
|
||
-
100 -
| (b) |
Every
act, agreement, undertaking, settlement, waiver,
notice or other communication given or made by the Company, or
given to
the Company, in its capacity as agent in accordance with paragraph
(a) of
this Clause 32.7,
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 Company and any other Obligor,
those of the
Company shall prevail.
|
||
| 32.8 | Use of Websites | ||
| (a) |
The
Company 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 Company 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 Company 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 Company 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 Company accordingly and the Company shall
supply
the information to the Agent in paper form. In any event the
Company 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 Company and the
Agent.
|
||
| (c) |
The
Company 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
|
||
-
101 -
| (v) |
the
Company 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 Company notifies the Agent under paragraph (c)(i) or
paragraph (c)(v) above, all information to be provided by the
Company
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 Company shall comply with any
such
request within ten Business Days.
|
||
| 33. |
CALCULATIONS
AND CERTIFICATES
|
||
| 33.1 | 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.
|
|||
| 33.2 |
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.
|
||
| 33.3 |
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.
|
||
| 33.4 |
Spanish
Civil Procedure
In
the event that this Agreement is raised to a Spanish
Public Document, for the purposes of Article 572.2 of the Spanish
Civil
Procedure Law (Ley
de Enjuiciamiento Civil),
all parties expressly agree that the exact amount due at any
time by the
Obligors to the Lenders will be the amount specified in a certificate
issued by the Agent (and/or any Lender) in accordance with Clause
33.2
(Certificates
and Determinations)
as representative of the Lenders reflecting the balance of the
accounts
referred to in Clause 33.1
(Accounts).
|
||
| 33.5 |
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.
|
||
-
102 -
|
34.
|
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.
|
35.
|
REMEDIES
AND WAIVERS
|
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party or 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.
|
36.
|
AMENDMENTS
AND WAIVERS
|
|
36.1
|
Required
consents
|
|
(a)
|
Subject
to Clause 36.2 (Exceptions) any term of the Finance Documents may
be amended or waived only with the consent of the Majority Lenders
and the
Company 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 36.
|
|
|
(c)
|
The
Company may effect, as agent of each Obligor, any amendment or
waiver
permitted by this Clause 36.
|
|
36.2
|
Exceptions
|
|
(a)
|
An
amendment or waiver that has the effect of changing or
which relates
to:
|
|
(i)
|
the
definition of "Certain Funds Period", "Certain
Funds Default" "Majority Lenders" or
"Optional Currency" in Clause
1.1 (Definitions);
|
||
|
(ii)
|
an
extension to the Availability Period or to the date 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 Borrowers or any of the Guarantors other than in
accordance
with Clause 26
(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 19
(Guarantee
and Indemnity),
Clause 25
(Changes
to the Lenders),
Clause 26 (Changes
to the Obligors)
(save to the extent a provision of Clause 26
refers only to requiring the approval of the Majority Lenders)
or this
Clause 36,
|
-
103 -
|
|
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.
|
|
37.
|
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.
-
104 -
SECTION
12
GOVERNING
LAW AND ENFORCEMENT
|
38.
|
GOVERNING
LAW
|
This
Agreement is governed by English law.
|
39.
|
ENFORCEMENT
|
|
39.1
|
Jurisdiction
of English Courts
|
|
(a)
|
The
courts of England have exclusive jurisdiction 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 the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary. | |
|
(c)
|
This
Clause 39.1 is for the benefit of the Finance Parties only.
As a result,
no Finance Party shall be prevented from taking proceedings
relating to a
Dispute in any other courts with jurisdiction. To the extent
allowed by
law or regulation, the Finance Parties may take concurrent
proceedings in
any number of jurisdictions.
|
|
39.2
|
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. |
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
-
105 -
SCHEDULE
1
The
Original Parties
Part
I
The
Obligors
|
Name
of Original Borrower
|
Registration
number (or equivalent, if any)
|
|
Cemex
España, S.A.
|
Nº
Hoja-Registro Mercantil, Madrid: M- 156542
NIF:
A46/004214
|
-
106 -
Part
II
The
Original Lenders
|
Original
Lender
|
Facility
A
Commitment
(US$)
|
Facility
B
Commitment
(US$)
|
Facility
C
Commitment
(US$)
|
|
Citibank
International Plc, Sucursal En
España
|
1,425,000,000
|
1,425,000,000
|
1,425,000,000
|
|
The
Royal Bank of Scotland plc
|
1,425,000,000
|
1,425,000,000
|
1,425,000,000
|
|
Banco
Bilbao Vizcaya Argentaria, S.A.
|
150,000,000
|
150,000,000
|
150,000,000
|
|
Total
|
3,000,000,000
|
3,000,000,000
|
3,000,000,000
|
-
107 -
SCHEDULE
2
Conditions
precedent
Part
I
Conditions
Precedent to Initial Utilisation
|
1.
|
The
Company
|
|
(a)
|
A
copy of the current constitutional documents of the
Company.
|
|
|
(b)
|
A
power of attorney granting a specific individual or individuals
sufficient
power to sign the Finance Documents on behalf of the Company and
a copy of
a resolution of the board of directors of the
Company:
|
|
(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
referred to in paragraph (b) above in relation to the Finance
Documents.
|
|
|
(d)
|
A
certificate of the Company (signed by an Authorised Signatory)
confirming
that borrowing the Total Commitments would not cause any borrowing
or
similar limit binding on it to be exceeded.
|
|
|
(e)
|
A
certificate of an Authorised Signatory of the Company 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.
|
Transaction
Documents and related
documents
|
|
|
A
copy of the current constitutional documetns of
BidCo.
|
|
3.
|
Finance
Documents
|
|
(a)
|
This
Agreement executed by the parties hereto.
|
|
|
(b)
|
Any
Fee Letter.
|
-
108 -
|
4.
|
Legal
Opinions
|
|
(a)
|
A
legal opinion as to English law from Xxxxxxxx Chance substantially
in the
form distributed to the Original Lenders prior to signing this
Agreement.
|
|
|
(b)
|
A
legal opinion with respect to the laws and regulations of the
Kingdom of
Spain from Xxxxxxxx Chance SL, substantially in the form distributed
to
the Original Lenders prior to signing this Agreement.
|
|
|
(c)
|
An
opinion from in-house counsel of the Company, substantially in
the form
distributed to the Original Lenders prior to signing this
Agreement.
|
|
5.
|
Offer
Related Conditions
|
|
(a)
|
A
copy, certified as being a true and complete copy by an Authorised
Signatory of the Company, of the Announcement.
|
|
|
(b)
|
A
copy, certified as being a true and complete copy by an Authorised
Signatory of the Company, of the Offer Document.
|
|
|
(c)
|
A
copy, certified as being a true and complete copy by an Authorised
Signatory of the Company, of the announcement that the Offer
has become or
has been declared unconditional in all respects together with
a
certificate from an Authorised Signatory of the Company that
in BidCo
declaring the Offer unconditional, BidCo is not in breach of
Clause
23.18
(The
Offer).
|
|
|
(d)
|
Either:
|
|
(i)
|
a
notice of the Treasurer of the Commonwealth of Australia stating
that the
Commonwealth Government does not object to Cemex, S.A.B. de C.V.
or any
direct of indirect subsidiary of it acquiring a substantial shareholding
in Target; or
|
||
|
(ii)
|
evidence
that the Treasurer of the Commonwealth of Australia has become,
or is,
precluded (by reason of lapse of time or otherwise) from making
an order
in respect of the acquisition of Target by such a person under
the Foreign
Acquisitions and Takeovers Acx 0000
(Cth).
|
|
(e)
|
A
certificate from the Company dated no earlier than the Unconditional
Date
confirming that:
|
|
(i)
|
BidCo
has complied in all material respects with the requirements of
Chapter 6
(takeovers) of the Corporations Act and that all other Australian
regulatory and other approvals contemplated by the Offer or to
which the
Offer is subject have been obtained;
|
||
|
(ii)
|
all
United States or other regulatory requirements with regard to
the
acquisition of any Target ADRs have been obtained;
|
||
|
(ii)
|
BidCo
has declared the Offer free from all defeating conditions in
accordance
with Section 650F of the Corporations Act; and
|
||
|
(iv)
|
it,
Cemex Parent and BidCo (in each case, as confirmed to the Company
by Cemex
Parent) has or will have sufficient funds available for BidCo
to pay for
all Target Shares to be acquired by it pursuant to the
Offer.
|
-
109 -
|
6.
|
Other
Documents and Evidence
|
|
(a)
|
The
Group Structure Chart.
|
|
|
(b)
|
The
Funds Flow Statement.
|
|
|
(c)
|
The
Original Financial Statements of the Company.
|
|
|
(d)
|
Evidence
that the process agent referred to in Clause 39.2
(Service
of process)
has accepted its
appointment.
|
-
110 -
Part
II
Conditions
Precedent Required to be delivered by an Additional
Obligor
Obligors:
|
1.
|
An
Accession Letter, duly executed by the Additional Obligor and the
Company.
|
|
(a)
|
A
copy of the constitutional documents of the Additional
Obligor.
|
|
|
(b)
|
A
copy of a resolution of the board of directors of the Additional
Obligor:
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Accession
Letter
and the Finance Documents and resolving that it execute the Accession
Letter;
|
||
|
(ii)
|
authorising
a specified person or persons to execute the Accession Letter and
other
Finance Documents on its behalf; and
|
||
|
(ii)
|
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
referred to in paragraph (b) above.
|
|
|
(d)
|
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 Obligor, approving the terms of, and the transactions
contemplated by, the Finance Documents to which the Additional
Obligor is
a party.
|
|
|
(e)
|
A
certificate of the Additional Obligor (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.
|
|
|
(f)
|
A
certificate of an Authorised Signatory of the Additional Obligor
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 Obligor in
form and
substance reasonably satisfactory to the legal advisers of the
Lenders.
|
|
|
(b)
|
A
legal opinion of Xxxxxxxx Chance, or other firm that can opine
for the
Additional Obligor if not Xxxxxxxx Chance, legal advisers to the
Lenders.
|
-
111 -
|
3.
|
Other
documents and evidence
|
|
(a)
|
Evidence
that any process agent referred to in Clause 39.2
(Service of process) has accepted its appointment.
|
|
|
(b)
|
In
relation to any Additional Borrower incorporated in Spain, a copy
of form
PE-1 stamped by the Bank of Spain (Banco de España), whereby it assigns a
Financial Operation Number ("NOF")
to the accession of such Additional Borrower.
|
|
|
(c)
|
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 Obligor
and
the Company 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.
|
|
|
(d)
|
The
Original Financial Statements of the Additional
Guarantor.
|
-
112 -
SCHEDULE
3
Requests
Part
I
Utilisation
Request
|
From:
|
[Each
relevant Borrower]
|
|
To:
|
[Agent]
|
| Dated: |
|
| Dear Sirs |
Cemex
- US$9,000,000,000 Acquisition Facilities Agreement
dated
[•] December 2006 (the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is a Utilisation Request.
Terms
defined in the Facilities 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 under each Facility on the following
terms:
|
|
Facility
A
|
Facility
B
|
Facility
C
|
||
| (a) |
Proposed
Utilisation
Date:
|
[·]
(or, if that is not a Business
Day, the next
Business Day)
|
[·]
(or, if that is not a Business Day, the next Business Day)
|
[·]
(or, if that is not a Business Day, the next Business
Day)
|
|
(b)
|
Borrower:
|
[·]
|
[·]
|
[·]
|
| (c) |
Facility
to be
utilised:
|
Facility
A
|
Facility
B
|
Facility
C
|
| (d) |
Currency
of
Loan:
|
[·]
|
[·]
|
[·]
|
|
(e)
|
Amount:
|
[·]
or, if less, the relevant Available Facility
|
[·]
or, if less, the relevant Available Facility
|
[·]
or, if less, the relevant Available Facility
|
|
(f)
|
Interest
Period:
|
[·]
|
[·]
|
[·]
|
|
3.
|
We
confirm that, to the extent applicable, each condition specified
in Clause
4.3
(Further
conditions precedent)
is satisfied or waived on the date of this Utilisation
Request.
|
-
113 -
|
4.
|
The proceeds of each Loan should be credited to the relevant accounts as follows: |
Facility
A Loan: [
].
Facility
B Loan: [
].
Facility
C Loan: [
].
|
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 Facilities Agreement shall have
the meaning
given to those terms in the Facilities
Agreement.
|
Yours
faithfully
................................................
authorised
signatory for
[each
relevant Borrower]
NOTES:
[Please
note, in particular the requirements of Clause 5.4
(Pro
rata drawings)].
-
114 -
Part
II
Selection
Notice
Applicable
to a Facility A Term Loan, a Facility B Loan or a Facility C
Loan
|
From:
|
[Borrower]
[Company]*
|
|
To:
|
[Agent]
|
| Dated: |
|
| Dear Sirs |
Cemex
- US$9,000,000,000 Acquisition Facilities Agreement
dated
[·] December 2006 (the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is a Selection Notice.
Terms
defined in the Facilities Agreement have the same meaning in
this
Selection Notice unless given a different meaning in this Selection
Notice.
|
|
2.
|
We
refer to the following Facility [A Term]/[B]/[C] Loan[s] with
an Interest
Period ending on [ ]**.
|
| 3. |
[We
request that the above Facility [A Term]/[B]/[C] Loan[s] be divided
into [
] Facility [A Term]/[B]/[C] Loan[s] with the following Base Currency
Amounts and Interest Periods:]***
|
or
[We
request that the next Interest Period for the above Facility [A Term]/[B]/[C]
Loan[s] is [ ]].****
| 4. | This Selection Notice is irrevocable. |
Yours
faithfully
................................................
authorised
signatory for
[the
Company on behalf of] [insert name of Relevant Borrower] *
NOTES:
| * | Amend as appropriate. The Selection Notice can be given by the Borrower or the Company. |
| ** | Insert details of all Term Loans for the relevant Facility which have an Interest Period ending on the same date. |
| *** | Use this option if division of Loans is requested |
| **** | Use this option if sub-division is not required. |
-
115 -
Part
III
Conversion
Request
To:
From:
Dated:
Cemex
- US$9,000,000,000 Acquisition Facilities Agreement
dated
[·] December 2006 (the "Facilities Agreement")
| 1. | We refer to the Facilities Agreement. Terms defined in the Facilities Agreement have the same meaning when used in this request. |
| 2. |
This
is a Conversion Request.
|
| 3. |
[We
hereby give you notice that we wish to exercise the option set out
in
Clause 8.1
(First
Term Out Option)
as follows:-
|
Outstanding
Facility A Loan to be converted
|
(a)
|
Currency:
................................................................................
|
|
|
(b)
|
Amount
of the Facility A Loan to be converted on the Initial Facility
A
Termination
Date:................................................................................
|
New
Facility A Loan to be made
|
(a)
|
Currency:
................................................................................
|
|
|
(b)
|
Amount
of the undrawn Facility A Commitment to be drawn down as a Facility A
Term
Loan:................................................................................]
/ or*
|
[We
hereby give you notice that we wish to exercise the option set out in Clause
8.2
(Second
Term Out Option)
as
follows:-
|
(a)
|
Currency:
................................................................................
|
|
|
(b)
|
Amount
of the Facility A Term Loan(s) to have its final maturity extended
to the
Second Term Out Option Termination
Date:................................................................................]
|
| 4. | We confirm that, as at the date of this Request, no Default has occurred and is continuing. |
Yours
faithfully
For
and
on behalf of
[The
Company]
*
Select
as appropriate.
-
116 -
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:
[Missing
Graphic Reference]
(b) in
relation to a Loan in any currency other than sterling:
[Missing
Graphic Reference]
per
cent per annum
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 10.3
(Default
interest))
payable for the relevant Interest Period on the
Loan.
|
|
-
117 -
| 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 7 below and expressed in pounds per
£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 £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.
|
-
118 -
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 Company
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.
|
-
119 -
SCHEDULE
5
Form
Of Transfer Certificate
|
To:
|
[Agent]
|
|
From:
|
[The
Existing Lender] (the
"Existing
Lender")
and [The New Lender] (the "New
Lender")
|
| Dated: |
|
Cemex
- US$9,000,000,000 Acquisition Facilities Agreement
dated
[·] December 2006 (the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is a Transfer Certificate.
Terms
defined in the Facilities Agreement have the same meaning in this
Transfer
Certificate unless given a different meaning in this Transfer
Certificate.
|
|
2.
|
We
refer to Clause 25.5
(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 25.5
(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 32.2
(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 25.4
(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.
|
The
New Lender confirms that it is not a U.S. Lender (and has not entered
into
a sub-participation agreement with a U.S. Lender in respect of
the
Commitment to be transferred pursuant hereto).
|
|
7.
|
This
Transfer Certificate is governed by English
law.
|
-
120 -
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 [·].
|
|
[Agent]
|
|
By:
|
-
121 -
SCHEDULE
6
Form
Of Accession Letter
|
To:
|
[Agent]
|
|
From:
|
[Subsidiary]
and [Company]
|
|
Dated:
|
|
Dear
Sirs
|
Cemex
- US$9,000,000,000 Acquisition Facilities Agreement
dated
[·] December 2006 (the "Facilities Agreement")
|
1.
|
[Subsidiary]
agrees to become an [Additional
Guarantor/Additional Borrower]*
and to be bound by the terms of the Facilities Agreement and the
other
Finance Documents as an [Additional
Guarantor/Additional Borrower]*
pursuant to [Clause 26.3
(Additional
Guarantors)
/
Clause 26.2
(Additional
Borrowers)]*
of the Facilities Agreement. [Subsidiary]
is a limited liability company duly incorporated under the laws
of
[name
of relevant jurisdiction]
with registered number [·].
|
|
2.
|
[Subsidiary's]
administrative details are as
follows:
|
Address:
Fax
No.:
Attention:
|
3.
|
This
letter is governed by English law.
|
|
4.
|
Terms
which are used in this Accession Letter which are not defined in
this
Accession Letter but are defined in the Facilities Agreement shall
have
the meaning given to those terms in the Facilities
Agreement.
|
[This
Accession Letter is entered into and delivered as a deed.]**
|
Signed
by: ……………………………….
|
……………………………….
|
|
|
[Company]
|
[Subsidiary]
|
NOTES:
|
*
|
Delete
as appropriate.
|
|
**
|
If
the Facilities are fully drawn there may be an issue in relation
to past
consideration for a proposed Additional Obligor. This can be overcome
by
acceding by way of deed.
|
-
122 -
SCHEDULE
7
Form
Of Compliance Certificate
|
To:
|
[l]
as
Agent
|
|
From:
|
[Company]
|
|
Dated:
|
|
Dear
Sirs
|
Cemex
- US$9,000,000,000 Acquisition Facilities Agreement
dated
[·] December 2006 (the "Facilities Agreement")
|
1.
|
We
refer to the Facilities Agreement. This is a Compliance Certificate.
Terms
defined in the Facilities 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 22.2 (Financial condition) the financial condition of
the Group1 as of [ ] evidenced by the consolidated
financial statements for the financial year/two financial half
years then
ended comply with the following
conditions:
|
|
(i)
|
Net
Borrowings EUR______________
("A")
|
||
| comprising EUR [Total Borrowings] | |||
| EUR [Liquid Investments] | |||
| (ii) | Adjusted EBITDA | ||
| comprising: | |||
| EUR [operating profit] | |||
| EUR [annual depreciation for fixed assets] | |||
| EUR [annual amortisation of intangible assets] | |||
| EUR [annual amortisation of start-up costs of the Group] | |||
| EUR [dividends received from non-consolidated companies] | |||
| EUR [dividends received from companies consolidated by the equity method] | |||
| EUR [Cemex Capital Contributions] |
1
To
be deemed to include BidCo and its Subsidiaries in the period between the
Acquisition of Target Date and the Acquisition of BidCo Date.
-
123 -
|
|
EUR
[Income for use of CO2
Emission Rights (if not already included in operating
profit)]
|
||
| EUR [acquired business (i) operating income and (ii) depreciation and amortisation expense] | |||
|
EUR
______________
("B")
|
|||
| A:B to be less than equal to 3.5:1 | |||
| (iii) | EBITDA EUR______________ ("B") | ||
| Finance Charges | |||
| comprising EUR [interest expenses] | |||
| EUR [other expenses] | |||
| EUR______________ ("C") | |||
| B:C to be greater than or equal to 3:1 |
|
(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):
|
|
| (c) |
As
of [end
of Relevant Period]
the Consolidated Total Assets is: EUR [ ].
|
|
3.
|
We
confirm that no Default is
continuing.
|
Signed: ………………………………….
Authorised
Signatory
of
Company
[insert
applicable certification language]
……………………………….
For
and
on behalf of
[name
of auditors of the Company]
-
124 -
SCHEDULE
8
Timetables
|
|
Loans
in euro or US Dollars
|
Loans
in other currencies
|
|
Agent
notifies the Company if a currency is approved as an Optional
Currency in
accordance with Clause 4.5
(Conditions
relating to Optional Currencies)
|
-
|
U-5
|
|
Delivery
of a duly completed Utilisation Request (Clause 5.1
(Delivery
of a Utilisation Request))
or Selection Notice (Clause 11
(Interest
Periods)
and 6
(Optional
Currencies))
|
U-3
11.00am
|
U-3
11.00am
|
|
Agent
determines (in relation to a Utilisation) the Base Currency
Amount of the
Loan, if required under paragraph of Clause 5.5
(Lenders'
participation)
and notifies the Lenders of the Loan in accordance with
Clause
5.5
(Lenders'
participation)
|
U-3
3.00pm
|
U-3
3.00pm
|
|
Agent
determines amount of the Loan in Optional Currency in accordance
with
Clause 6.3
(Change
of currency)
|
U-3
3.00pm
|
U-3
3.00pm
|
|
Agent
determines amount of the Loan in Optional Currency in accordance
with
Clause 6.4
(Same
Optional Currency during successive Interest Periods)
|
U-3
3.00pm
|
U-3
3.00pm
|
|
Agent
receives a notification from a Lender under Clause 6.2
(Unavailability
of a currency)
|
U-2
9.30am
|
U-2
9.30am
|
|
Agent
gives notice in accordance with Clause 6.2
(Unavailability
of a currency)
|
U-
2
10.30am
|
U-
2
10.30am
|
-
125 -
|
Agent
determines amount of the Loan in Optional Currency converted
into Base
Currency in accordance with paragraph (b) of Clause 6.4
(Same
Optional Currency during successive Interest Periods)
|
Business
Day on which the Agent originally calculated the Base Currency
Amount
|
Business
Day on which the Agent originally calculated the Base Currency
Amount
|
|
LIBOR
or EURIBOR is fixed
|
Quotation
Day as of 11:00 a.m. London time in respect of LIBOR and
as of 11.00 a.m.
Brussels time in respect of EURIBOR
|
Quotation
Day as of 11:00 a.m. London time
|
"U" =
date
of
utilisation
"U
- X" =
X
Business Days prior to date of utilisation
-
126 -
SCHEDULE
9
Form
of LMA Confidentiality Undertaking
[Letterhead
of Existing Bank]
To:
| [insert
name of Potential Lender]
|
Re: The
Facilities
|
Borrower:
Cemex España, S.A: (the "Company")
Amount:
US$9,000,000,000
Agent:
The Royal Bank of Scotland plc
|
[insert
name of Potential Lender]
|
Dear
Sirs
We
understand that you are considering participating in the Facilities. 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
You undertake:
|
|
(a)
|
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 Facilit[y/ies];
|
|
|
(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 Facilities.
|
-
127 -
|
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;
or
|
|
|
(c)
|
with
the prior written consent of us and the
Company.
|
|
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) 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
Facilities 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 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
|
|
-
128 -
|
(b)
|
we
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 under this letter 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 under this letter. The terms of this letter and your
obligations under this letter 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 Company
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.
|
-
129 -
For
the
purpose "Front
Running"
means
the process of:
|
(a)
|
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
|
|
|
(b)
|
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 the Company 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) Xxx 0000 is excluded.
|
|
|
(b)
|
The
Relevant Persons may enjoy the benefit of the terms of paragraphs
6 and 9
subject to and in accordance with this paragraph 11 and the provisions
of
the Third Parties Act.
|
|
|
(c)
|
Notwithstanding
any provisions of this letter, the parties to this letter do not
require
the consent of any Relevant Person or any member of the Group to
rescind
or vary this letter at any time.
|
|
12.
|
Governing
Law and Jurisdiction
This letter (including the agreement constituted by your acknowledgement
of its terms) shall be governed by and construed in accordance
with the
laws of England and the parties submit to the non-exclusive jurisdiction
of the English courts.
|
|
13.
|
Definitions
In
this letter (including the acknowledgement set out
below):
|
"Confidential
Information"
means
any information relating to the Company, the Group, and the Facilities
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 after that date,
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 Company 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);
-
130 -
"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 Facilities.
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 Company and each other member of the Group
We
acknowledge and agree to the above:
…….............................
For
and on behalf of
[Potential
New Lender]
-
131 -
SCHEDULE
10
Existing
Security
|
Company
|
Lender
|
Security
|
Total
Principal Amount of Indebtedness Secured as of 30 September 2006
(millions
of euro)
|
|
Cemex
Inc
|
Hampton
|
Land
related with the credit
|
0.13
|
|
Mineral
Resource Technologies, Inc.
|
Met-South,
Inc.
|
Ash
storage facility
|
0.08
|
|
Cementownia
Rudniki, S.A.
|
Société
Générale
|
Leased
equipment
|
3.84
|
|
Beton
Prêt De L'Est
|
Société
Générale
|
Leased
equipment
|
9.91
|
|
A
Beton Viacolor Térkö Rt. / Danubiusbeton Dunántúl Kft.
|
Raiffeisen
Bank
|
Mortgage
|
0.01
|
|
Cemex,
Latvia
|
Disko
Leasing GmbH
|
Leased
Equipment
|
0.07
|
|
Transbeton
Lieferbeton
|
Raiffeisen
Bank
|
Land
related with the credit
|
3.35
|
|
Transportbeton
Hütten GmbH &
Co.
KG
|
Dresdner
Bank AG
|
Land
related with the credit
|
0.07
|
|
Quarzsandwerk
Wellmersdorf
GmbH
& Co. KG
|
Raiffesenbank
|
Land
related with the credit
|
0.14
|
|
Xxxxxx
Xxxx GmbH & Co. KG
|
Kreissparkasse
Schwarzenbek
|
Land
related with the credit
|
0.55
|
|
Betonförderung
Nordwest
|
Hanseatische
Leasing
|
Leased
equipment
|
0.07
|
|
Cemex
Co, UK
|
ING
|
Leased
equipment
|
39.44
|
|
Cemex
Co, UK
|
Lloyds
TSB
|
Leased
equipment
|
5.13
|
|
TOTAL
|
62.79
|
||
|
Together
with any Security over the assets of the Target Group as at the
Acquisition of Target Date.
|
|||
-
132 -
SCHEDULE
11
Existing
Notarisations
|
Type
of Agreement
|
Borrower/Guarantor
|
Maturity
Date
|
Total
Principal Amount of Indebtedness notarised as of 30 September
2006
|
|
Bilateral
lines
|
Cemex
España, S.A.
|
April
2007
|
EUR
3,005,060.52
|
|
TOTAL
|
EUR
3,005,060.52
|
-
133 -
SCHEDULE
12
Material
Subsidiaries
| 1. |
Cemex,
Inc.
|
| 2. |
Cemex
Construction Materials LP
|
| 3. |
Cemex
UK Operations Limited
|
| 4. |
RMC
France SAS
|
| 5. |
Cemex
Deutschland AG
|
-
134 -
SCHEDULE
13
Existing
Financial Indebtedness
As
of
30.09.06
Figures
in millions of €*
|
BORROWER
|
INSTRUMENT
|
OUTSTANDING
AMOUNT |
FINAL
MATURITY
|
|
CEMEX
UK
|
Loan
Notes
|
23.00
|
June
2005 - December 2009
|
|
SUBTOTAL
|
23.00
|
||
|
CEMEX,
INC.
|
SBLC
X.X. Xxxxx*
|
33.98
|
Dec
2006 - April 2025
|
|
Other
debt
|
10.37
|
Between
2006 - 2011
|
|
|
SUBTOTAL
|
44.35
|
||
|
CEMEX
INVESTMENTS LIMITED
|
Long
term debt with credit entities
|
57.08
|
Between
2006 - 2017
|
|
Short
term debt with credit entities
|
27.32
|
||
|
SUBTOTAL
|
84.40
|
||
|
GESTIÓN
FRANCAZAL ENTERPRISES SAS
|
Long
term debt with credit entities
|
9.36
|
Between
2006 - 2013
|
|
Short
term debt with credit entities
|
9.35
|
||
|
Other
short term debt
|
5.19
|
||
|
Other
debt
|
0.11
|
||
|
SUBTOTAL
|
24.00
|
||
|
PUERTO
RICAN CEMENT COMPANY
|
Credit
Line (US$25mm)
|
20.29
|
November
2010
|
|
Credit
Line (US$30mm)
|
23.66
|
August
2008
|
|
|
SUBTOTAL
|
43.95
|
||
|
OTHER
COMPANIES
|
Credit
Lines
|
18.84
|
|
|
SUBTOTAL
|
18.84
|
|
TOTAL
DEBT
|
238.54
|
Together
with the Existing Target Debt.
* Stand
by letters of credit over tax-exempt bonds. Maturities shown correspond to
these
bonds. SBLC renewed on an annual basis.
-
135 -
SIGNATURES
THE
COMPANY AND ORIGINAL BORROWER
CEMEX
ESPAÑA, S.A.
|
By:
|
XXXXXX XXXXXX |
|
Address:
|
Xxxxx
Xxxxxxxxx xx Xxxxxx Xx. 0
Xxxxxx
00000
Xxxxx |
|
Fax:
|
x00
00 000 0000
|
|
Attention:
|
Finance
Department - Xxxxxx Xxxx
|
THE
ARRANGER
CITIGROUP
GLOBAL MARKETS LIMITED
|
By:
|
XXXX XXXXX |
|
Address:
|
Citigroup
Centre,
33
Canada Square,
Xxxxxx
Xxxxx,
Xxxxxx
X00 0XX
|
|
Fax:
|
+
00 00 0000 0000
|
THE
ROYAL BANK OF SCOTLAND PLC
|
By:
|
XXXXX XXXXXX |
|
Address:
|
000
Xxxxxxxxxxx, Xxxxxx, XX0X 0XX
|
|
Fax:
|
x00
000 000 0000
|
|
Attention:
|
Xxxxx
Xxxxxx
|
-
000 -
XXXXX
XXXXXX XXXXXXX ARGENTARIA, S.A.
|
By:
|
XXXX XXXXX XXXXXXXX | XXXXXXX XXXXXXXX |
|
Address:
|
Xxx
xx xxx Xxxxxxxx
00000
Xxxxxx, Xxxxx*
|
|
|
Fax:
|
x00
00 0000000
|
|
|
Attn:
|
Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx | |
THE
AGENT
THE
ROYAL BANK OF SCOTLAND PLC
|
By:
|
XXXXX XXXXXX |
|
Address:
|
000
Xxxxxxxxxxx, Xxxxxx, XX0X 0XX
|
|
Fax:
|
x00
000 000 0000
|
|
Attention:
|
Xxxx
Xxxxxxx
|
THE
LENDERS
CITIBANK
INTERNATIONAL PLC
|
By:
|
MAR TURRADO |
|
Address:
|
Citigroup
Centre,
33
Canada Square,
Xxxxxx
Xxxxx,
Xxxxxx X00 0XX |
|
Fax:
|
x00
00 000 0000
|
|
Attn:
|
Xxxxxx
Xxxxxxx / Xxxxxxxxx Xxxxxxxxx / Wiola Zareba / Xxxxxx
Xxxxxxxx
|
THE
ROYAL BANK OF SCOTLAND PLC
|
By:
|
XXXXX XXXXXX |
|
Address:
|
x/
Xxxx Xxxxxx x Xxxxxx, 0, 00000, Xxxxxx, Xxxxx
|
|
Fax:
|
x00
00 00 00 000
|
|
Attention:
|
Xxxxxxx
Xxxxxxxxxx
|
*
Address for notices updated here and overleaf from version
signed.
-
137 -
BANCO
BILBAO VIZCAYA ARGENTARIA, S.A.
|
By:
|
XXXX XXXXX XXXXXXXX | XXXXXXX XXXXXXXX |
|
Address:
|
Xxx
xx xxx Xxxxxxxx
00000
Xxxxxx, Xxxxx*
|
|
|
Fax:
|
x00
00 0000000
|
|
|
Attn:
|
Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx | |
|
|
||
-
138
-
