AMENDMENT NO. 1 TO CREDIT AGREEMENT
Exhibit 4.9.1
EXECUTION VERSION
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Amendment No. 1 to the Credit Agreement (as defined below), dated as of June 19, 2006 (this “Amendment No. 1"), is entered into by and among CEMEX, S.A. de C.V., a sociedad anonima de capital variable organized and existing pursuant to the laws of the United Mexican States (the “Borrower”), CEMEX MÉXICO, S.A. de C.V., a sociedad anonima de capital variable organized and existing pursuant to the laws of the United Mexican States, EMPRESAS TOLTECA DE MÉXICO, S.A. de C.V., a sociedad anonima de capital variable organized and existing pursuant to the laws of the United Mexican States (each a “Guarantor” and together, the “Guarantors”), the several Lenders party hereto, BARCLAYS BANK PLC, NEW YORK BRANCH, as Administrative Agent, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK PLC, as Joint Lead Arranger and Joint Bookrunner and CITIGROUP GLOBAL MARKETS INC., as Documentation Agent, Joint Lead Arranger and Joint Bookrunner.
RECITALS
A. Borrower, the Guarantors, the Administrative Agent, the several Lenders party thereto, Barclays Bank PLC, The New York Branch, as Administrative Agent, Barclays Capital, The Investment Banking Division of Barclays Bank PLC, as Joint Lead Arranger and Joint Bookrunner, and Citigroup Global Markets Inc., as Documentation Agent, Joint Lead Arranger and Joint Bookrunner, are parties to that certain senior secured credit facility, dated as of May 31, 2005 (as now or hereafter amended, restated or otherwise modified, the "Credit Agreement").
B. Borrower has requested that the Administrative Agent and the Lenders consent to the following amendment to the Credit Agreement.
C. This Amendment No. 1 shall constitute a Transaction Document and these Recitals shall be construed as part of this Amendment No. 1.
NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and of the Loans and other extensions of credit heretofore, now or hereafter made to, or for the benefit of, Borrower by Lenders, the Borrower, the Administrative Agent, and the Lenders hereby agree as follows:
1. Definitions. Except to the extent otherwise specified herein, capitalized terms used in this Amendment No. 1 shall have the same meanings ascribed to them in the Credit Agreement and Exhibits thereto.
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2. |
Amendments. |
2.1 The definition for “Applicable Margin” in Section 1.01 of the Credit Agreement shall be deleted and replaced in its entirety with the following language:
““Applicable Margin” means, at any date, the applicable margin set forth below based upon the Borrower’s Consolidated Net Debt/EBITDA Ratio (it being understood that measurement of the Consolidated Net Debt/EBITDA Ratio as of the most recent Measurement Date is sufficient for this purpose):
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Applicable Margin | ||
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Consolidated Net Debt/EBITDA Ratio |
Base Rate Loans |
LIBOR Loans |
Euribor Loans |
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3.00 to 1 or greater |
0.40% |
0.40% |
0.40% |
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Less than 3.00 to 1, but greater than or equal to 2.50 to 1 |
0.35% |
0.35% |
0.35% |
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Less than 2.50 to 1, but greater than or equal to 2.00 to 1 |
0.30% |
0.30% |
0.30% |
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Less than 2.00 to 1 |
0.25% |
0.25% |
0.25% |
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2.2 |
The following definitions will be added to Section 1.01: |
““Loan Extension Request Date” has the meaning specified in Section 3.13.
“Loan Extension Consent” has the meaning specified in Section 3.13.
“Loan Extension Consent Date” has the meaning specified in Section 3.13.”
2.3 A new Section 3.13 shall be added to the Credit Agreement to read as follows:
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“3.13 |
Loan Extension. |
(i) Extension of Termination Date of Loan. The Borrower may, within 60 days, but not less than 45 days prior to June 6, 2007 (the “Extension Request Date”), by notice to the Administrative Agent, make written request of the Lenders to extend the Termination Date for an additional period of one (1) year. The Administrative Agent will give prompt notice to each of the Lenders of its receipt of any such request for extension of the Termination Date. Each Lender shall make a determination not later than 30 days prior to the Extension Request Date (the “Extension Consent Date”) as to whether or not it will agree to extend the Termination Date as requested (such approval of extension shall be an “Extension Consent”); provided, however, that failure by any Lender to make a timely response to the Borrower’s request for extension of the Termination Date shall be deemed to constitute a refusal by such Lender to extension of the Termination Date.
(ii) Lender Not Consenting. If by any Extension Consent Date the Borrower and the Administrative Agent have not received an Extension Consent from any Lender, the Termination Date, as it relates to such Lender, shall not be extended, the Commitment of such Lender shall terminate on the Termination Date applicable to it and any Loans made by such Lender and all accrued and unpaid interest thereon shall be due and payable on such Termination
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Date. Upon the termination of the Commitment of any such Lender, unless this Agreement is amended as provided in Section 3.13(iv), the aggregate amount of the Commitments shall be reduced by the amount of such terminated Commitment, and the Commitment Percentage of each other Lender shall be adjusted to that percentage obtained by dividing the Commitment of such Lender by the aggregate amount of the Commitments after giving effect to such reduction as provided in the definition of “Commitment Percentage” unless an Additional Lender is added as provided in Section 3.13 (iv).
(iii) Other Lenders. No refusal by any one Lender to consent to any extension of the Termination Date shall affect the extension of the Termination Date as it may relate to the Commitment and Loans of any Lender that consents to such extension as provided in Section 3.13(i), and one or more Lenders may consent to the extension of the Termination Date as it relates to them notwithstanding any refusal by any other Lenders so to consent.
(iv) Additional Lender or Lenders. If any Lender does not deliver an Extension Consent as provided in Section 3.13(i), upon the expiration of the Commitment of such Lender, or upon its termination as provided in Section 3.13(iv), the Borrower may with the approval of the Administrative Agent amend this Agreement as provided in Section 13.02 and 13.06 to add one or more other Lenders as parties, with such Commitment or Commitments as may be agreed to by the Administrative Agent and such other Lender or Lenders; provided that such additions do not increase the aggregate amount of the Commitments to an amount greater than the aggregate amount of Commitments in effect immediately before such expiration or termination.
(v) Notice. The Administrative Agent shall promptly advise each Lender of any change in Commitment Percentages and shall promptly provide each of the Lenders with a copy of any amendment made pursuant to Section 3.13(iv).”
3. Representations and Warranties. The Borrower and Credit Parties hereby represent and warrant to the Administrative Agent and the Lenders that:
3.1. The representations and warranties contained in the Credit Agreement are true and correct as of the date of this Amendment No. 1.
3.2. The execution, delivery and performance by the Borrower and the other Credit Parties of this Amendment No. 1 has been duly authorized by all necessary corporate action, and this Amendment No. 1 constitutes the legal, valid and binding obligation of the Borrower and Credit Parties enforceable against the Borrower and Credit Parties in accordance with its terms, except as the enforcement hereof may be subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally or to general principles of equity.
3.3. The execution, delivery and performance of this Amendment No. 1 does not, and will not, contravene or conflict with any provision of (i) law, (ii) any judgment, decree or order, or (iii) the certificate or articles of incorporation or by-laws or other constituent documents of the Borrower and Credit Parties, and does not, and will not, contravene or conflict
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with, or cause any Lien to arise under, any provision of any indenture, agreement, mortgage, lease, instrument or other document binding upon or otherwise affecting the Borrower and Credit Parties or any property of the Borrower and Credit Parties.
3.4. No Default or Event of Default exists under the Credit Agreement or any other Transaction Document or will exist after or be triggered by the execution, delivery and performance of this Amendment No. 1. In addition, the Borrower and Credit Parties hereby represents, warrants and reaffirms that the Credit Agreement and each of the other Transaction Documents remains in full force and effect.
4. Conditions Precedent to Effectiveness. The effectiveness of the amendments set forth in Section 2 hereof are in each instance subject to the satisfaction of each of the following conditions precedent:
4.1. Amendment No. 1. This Amendment No. 1 shall have been duly executed and delivered by the Borrowers, the Administrative Agent and Lenders.
4.2. No Default. No Default or Event of Default shall have occurred and be continuing or would result from the effectiveness of this Amendment No. 1.
4.3. Opinion. The Administrative Agent and the Lenders shall have received opinions from the Borrower’s General Counsel, with respect to this Amendment No. 1 in form and substance acceptable to Agent.
4.4. Miscellaneous. Agent and Lenders shall have received such other agreements, instruments and documents as Agent or Lenders may reasonably request.
5. Reference to and Effect Upon the Credit Agreement and other Transaction Documents.
5.1. Full Force and Effect. Except as specifically provided herein, the Credit Agreement, the Notes and each other Transaction Document shall remain in full force and effect and each is hereby ratified and confirmed by the Borrower.
5.2. No Waiver. The execution, delivery and effect of this Amendment No. 1 shall be limited precisely as written and shall not be deemed to (i) be a consent to any waiver of any term or condition, or to any amendment or modification of any term or condition (except as specifically provided herein) of the Credit Agreement, the Notes or any other Transaction Document or (ii) prejudice any right, power or remedy which the Administrative Agent or any Lender now has or may have in the future under or in connection with the Credit Agreement or any other Transaction Document.
5.3. Certain Terms. Each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or any other word or words of similar import shall mean and be a reference to the Credit Agreement as amended hereby, and each reference in any other Transaction Document to the Credit Agreement or any word or words of similar import shall be and mean a reference to the Credit Agreement as amended hereby.
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6. Counterparts. This Amendment No. 1 may be executed in any number of counterparts, each of which when so executed shall be deemed an original but all such counterparts shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment No. 1 by telecopier shall be as effective as delivery of a manually executed counterpart signature page to this Amendment No. 1.
7. Costs and Expenses. As provided in the Credit Agreement, the Borrower shall pay the fees, costs and expenses incurred by Agent in connection with the preparation, execution and delivery of this Amendment No. 1 (including, without limitation, attorneys’ fees).
8. GOVERNING LAW. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPALS.
9. Headings. Section headings in this Amendment No. 1 are included herein for convenience of reference only and shall not constitute a part of this Amendment No. 1 for any other purpose.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed as of the date first written above.
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CEMEX, S.A. DE C.V., as Borrower | |||
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By |
/s/ Xxxxxx Xxxxxx Xxxxxxx Xxxxxxx | |
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Name: |
Xxxxxx Xxxxxx Xxxxxxx Bandala |
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Title: |
Treasury Director |
[Amendment $1.2 bil Facility]
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CEMEX MÉXICO, S.A. DE C.V., as Guarantor | |||
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By |
/s/ Xxxxxx Xxxxxx Xxxxxxx Xxxxxxx | ||
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Name: |
Xxxxxx Xxxxxx Xxxxxxx Bandala | |
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Title: |
Treasury Director | |
[Amendment $1.2 bil Facility]
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EMPRESAS TOLTECA DE MÉXICO, S.A. DE C.V., as Guarantor | |||
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By |
/s/ Xxxxxx Xxxxxx Xxxxxxx Xxxxxxx | ||
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Name: |
Xxxxxx Xxxxxx Xxxxxxx Bandala | |
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Title: |
Treasury Director | |
[Amendment $1.2 bil Facility]
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BARCLAYS BANK PLC, NEW YORK BRANCH, as Administrative Agent and a Lender | |||
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By |
/s/ Rose Xxxx Xxxxx | ||
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Name: |
Rose Xxxx Xxxxx | |
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Title: |
Associate Director | |
[Amendment $1.2 bil Facility]
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BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK PLC, as Joint Lead Arranger and Joint Bookrunner | |||
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By |
/ s/ Rose Xxxx Xxxxx | ||
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Name: |
Rose Xxxx Xxxxx | |
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Title: |
Associate Director | |
[Amendment $1.2 bil Facility]
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CITIGROUP GLOBAL MARKETS INC., as Documentation Agent, Joint Lead Arranger and Joint Bookrunner | |||
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By |
/s/ Xxxxxx Xxxxxx | ||
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Name: |
Xxxxxx Xxxxxx | |
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Title: |
Director | |
[Amendment $1.2 bil Facility]
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CITIBANK, N.A. NASSAU, BAHAMAS BRANCH, as a Lender | |||
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By |
/s/ X. Xxxxxx | ||
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Name: |
X. Xxxxxx | |
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Title: |
Attorney-in-Fact | |
[Amendment $1.2 bil Facility]
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BANCO SANTANDER CENTRAL HISPANO, S.A., NEW YORK BRANCH, as a Lender | |||
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By |
/s/ Xxxxx Xxxxx-Xxxx | ||
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Name: |
Xxxxx Xxxxx-Xxxx | |
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Title: |
Vice President | |
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By |
/s/ Xxxxxx X. De Xxxxx | |
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Name: |
Xxxxxx X. De Xxxxx |
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Title: |
Executive Director |
[Amendment $1.2 bil Facility]
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THE BANK OF NOVA SCOTIA, as a Lender | |||
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By |
/s/ Xxxxxxx Xxxxxxx | ||
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Name: |
Xxxxxxx Xxxxxxx | |
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Title: |
Vice-President | |
[Amendment $1.2 bil Facility]
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BANCO BILBAO VIZCAYA ARGENTARIA, S.A., GRAND CAYMAN BRANCH, as a Lender | |||
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By |
/s/ Xxx Xxxxx | ||
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Name: |
Xxx Xxxxx | |
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Title: |
Vice President | |
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By |
/s/ Xxxxxx Xxxxxxxx | ||
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Name: |
Xxxxxx Xxxxxxxx | |
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Title: |
Vice President | |
[Amendment $1.2 bil Facility]
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BNP PARIBAS PANAMA BRANCH, as a Lender | |||
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By |
/s/ Xxxxx Xxxxx | ||
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Name: |
Xxxxx Xxxxx | |
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Title: |
Executive Vice President | |
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By |
/s/ Nair Gonzalez | |
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Name: |
Nair Gonzalez |
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Title: |
Senior Vice President |
[Amendment $1.2 bil Facility]
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CALYON NEW YORK BRANCH, as a Lender | |||
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By |
/s/ Xxxxx Xxxxx | ||
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Name: |
Xxxxx Xxxxx | |
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Title: |
Managing Director | |
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By |
/s/ Xxxxxxxx Xxxxxxx | |
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Name: |
Xxxxxxxx Xxxxxxx |
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Title: |
Director |
[Amendment $1.2 bil Facility]
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ING BANK N.V., as a Lender | |||
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By |
/s/ J. van Steenderen | ||
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Name: |
J. van Steenderen | |
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Title: |
General Manager | |
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By |
/s/ A.A. Xxxxxx-Xxxxxxx | |
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Name: |
A.A. Xxxxxx-Xxxxxxx |
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Title: |
Manager Credit Administration |
[Amendment $1.2 bil Facility]
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WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender | |||
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By |
/s/ Xxxxxxxx Xxxxx | ||
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Name: |
Xxxxxxxx Xxxxx | |
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Title: |
Managing Director | |
[Amendment $1.2 bil Facility]
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BAYERISCHE LANDESBANK, as a Lender | |||
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By |
/s/ Xxxxxxx Xxxxx | ||
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Name: |
Xxxxxxx Xxxxx | |
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Title: |
First Vice President | |
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By |
/s/ Xxxxxx XxXxxxx | |
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Name: |
Xxxxxx XxXxxxx |
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Title: |
First Vice President |
[Amendment $1.2 bil Facility]
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FORTIS CAPITAL CORP., as a Lender | |||
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By |
/s/ Xxxx X. Xxxxxx | ||
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Name: |
Xxxx X. Xxxxxx | |
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Title: |
Senior Vice President | |
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By |
/s/ Xxxxxxx Xxxxxxxxx | |
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Name: |
Xxxxxxx Xxxxxxxxx |
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Title: |
Vice President |
[Amendment $1.2 bil Facility]
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HSBC BANK PLC SURCURSAL EN ESPANA, as a Lender | |||
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By |
/s/ Xxxxxxxxx Xxxxx | ||
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Name: |
Xxxxxxxxx Xxxxx | |
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Title: |
Director | |
[Amendment $1.2 bil Facility]
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THE ROYAL BANK OF SCOTLAND PLC, as a Lender | |||
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By |
s/ Xxxxxxx Xxxxxxxxxx | ||
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Name: |
Xxxxxxx Xxxxxxxxxx | |
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Title: |
Senior Director | |
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By |
/s/ Xxxxxxxxx Xxxxxx | |
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Name: |
Xxxxxxxxx Xxxxxx |
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Title: |
Associate Director |
[Amendment $1.2 bil Facility]
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SOCIETE GENERALE, as a Lender | |||
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By |
/s/ Xxxxxxxxx Xxxxxx | ||
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Name: |
Xxxxxxxxx Xxxxxx | |
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Title: |
Vice President | |
[Amendment $1.2 bil Facility]
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BANK OF AMERICA, N.A., as a Lender | |||
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By |
/s/ Xxxxxx Xxxxxxx | ||
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Name: |
Xxxxxx Xxxxxxx | |
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Title: |
Attorney-in-Fact | |
[Amendment $1.2 bil Facility]
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THE BANK OF TOKYO-MITSUBISHI, LTD., as a Lender | |||
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By |
/s/ Xxxxxx X. Xxxxx | ||
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Name: |
Xxxxxx X. Xxxxx | |
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Title: |
Vice President & Manager | |
[Amendment $1.2 bil Facility]
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JPMORGAN CHASE BANK NEW YORK, as a Lender | |||
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By |
/s/ Xxxxx Xxxxx | ||
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Name: |
Xxxxx Xxxxx | |
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Title: |
Vice President | |
[Amendment $1.2 bil Facility]
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SANPAOLO IMI S.P.A., as a Lender | |||
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By |
/s/ Xxxxxxx Xxxxx | ||
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Name: |
Xxxxxxx Xxxxx | |
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Title: |
V.P. | |
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By |
/s/ Xxxxxx Xxxxxxxx | |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
G.M. |
[Amendment $1.2 bil Facility]
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BANCA MONTE DEI PASCHI DI SIENA S.P.A., as a Lender | |||
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By |
/s/ Xxxxxxx Xxxxxxx | ||
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Name: |
Xxxxxxx Xxxxxxx | |
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Title: |
Senior Vice President & General Manager | |
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By |
/s/ Xxxxx X. Xxxxx | ||
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Name: |
Xxxxx X. Xxxxx | |
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Title: |
Vice President | |
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CAJA MADRID MIAMI AGENCY, as a Lender | |||
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By |
/s/ Xxxx Xxxxx | ||
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Name: |
Xxxx Xxxxx | |
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Title: |
Capital Markets | |
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By |
/s/ Xxxxxxx Xxxxxx | |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Corporate Banking |
[Amendment $1.2 bil Facility]
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COMERICA BANK, as a Lender | |||
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By |
/s/ Xxxx Xxxxxx Xxxxxxx | ||
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Name: |
Xxxx Xxxxxx Xxxxxxx | |
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Title: |
Vice President | |
[Amendment $1.2 bil Facility]
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KBC BANK, N.V., NEW YORK BRANCH, as a Lender | |||
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By |
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Name: |
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Title: |
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[Amendment $1.2 bil Facility]
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XXXXXX XXXXXXX BANK, as a Lender | |||
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By |
/s/ Xxxxxx Xxxxxx | ||
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Name: |
Xxxxxx Xxxxxx | |
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Title: |
Vice President | |
[Amendment $1.2 bil Facility]
