EXHIBIT 4.21
▇▇▇▇▇▇▇▇ EXECUTION VERSION
CHANCE
RMC GROUP LIMITED
CEMEX ESPANA, S.A.
CEMEX CARACAS INVESTMENTS B.V.
CEMEX CARACAS II INVESTMENTS B.V.
CEMEX EGYPTIAN INVESTMENTS B.V.
CEMEX MANILA INVESTMENTS B.V.
CEMEX AMERICAN HOLDINGS B.V.
CEMEX SHIPPING B.V.
AS ORIGINAL GUARANTORS
RMC GROUP LIMITED
AS ORIGINAL BORROWER
BANC OF AMERICA SECURITIES LIMITED
BNP PARIBAS
HSBC INVESTMENT BANK PLC
THE ROYAL BANK OF SCOTLAND PLC
WESTLB AG, LONDON BRANCH
AS MANDATED LEAD ARRANGERS
THE ROYAL BANK OF SCOTLAND PLC
AS AGENT
AND OTHERS
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(pound)1,000,000,000 TERM AND REVOLVING CREDIT AGREEMENT DATED 18 OCTOBER 2002
AS AMENDED ON 10 DECEMBER 2002, 12 JANUARY 2004 AND AS AMENDED AND
RESTATED ON 16 MARCH 2005
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CONTENTS
Clause Page
1. Definitions And Interpretation......................................1
2. The Facilities.....................................................18
3. Utilisation Of The Term Facility...................................19
4. Multicurrency Option...............................................19
5. Interest Periods For Term Advances.................................21
6. Payment And Calculation Of Interest On Term Advances...............23
7. Utilisation Of The Revolving Facility..............................23
8. Payment And Calculation Of Interest On Revolving Advances..........24
9. Market Disruption And Alternative Interest Rates...................25
10. Notification.......................................................26
11. Repayment Of The Revolving Facility................................26
12. Repayment Of The Term Facility.....................................26
13. Cancellation And Prepayment........................................27
14. Taxes..............................................................29
15. Tax Receipts.......................................................31
16. Increased Costs....................................................32
17. Illegality.........................................................33
18. Mitigation.........................................................33
19. Representations....................................................34
20. Financial Information..............................................37
21. Financial Condition................................................41
22. Covenants..........................................................47
23. Events Of Default..................................................54
24. Guarantee And Indemnity............................................57
25. Commitment Commission And Fees.....................................60
26. Costs And Expenses.................................................60
27. Default Interest And Break Costs...................................61
28. Parent's Indemnities...............................................62
29. Currency Of Account And Payment....................................63
30. Payments...........................................................64
31. Set-Off............................................................66
32. Sharing............................................................66
33. The Agent, The Mandated Lead Arrangers And The Banks...............67
34. Assignments And Transfers..........................................71
35. Changes To The Obligors............................................74
36. Calculations And Evidence Of Debt..................................75
37. Remedies And Waivers, Partial Invalidity...........................77
38. Notices............................................................77
39. Counterparts.......................................................79
40. Amendments.........................................................79
41. Governing Law......................................................79
42. Jurisdiction.......................................................80
Schedule 1 THE ORIGINAL PARTIES.................................81
Part I The Banks............................................81
Part II The Original Guarantors..............................82
Schedule 2 FORM OF TRANSFER CERTIFICATE.........................83
Schedule 3 CONDITIONS PRECEDENT.................................86
Schedule 4 NOTICE OF DRAWDOWN...................................87
Schedule 5 FORM OF COMPLIANCE CERTIFICATE.......................89
Part I Parent's Compliance Certificate......................89
Part II Original Borrower's Compliance Certificate...........91
Schedule 6 FORM OF ACCESSION MEMORANDUM.........................92
Schedule 7 ADDITIONAL CONDITIONS PRECEDENT......................94
Schedule 8 FORM OF RESIGNATION NOTICE...........................96
Part I Resignation Of Additional Borrower...................96
Part II Resignation Of Guarantor.............................97
Schedule 9 MANDATORY COST.......................................98
Schedule 10 EXISTING SECURITY...................................101
Schedule 11 MATERIAL SUBSIDIARIES...............................102
Schedule 12 EXISTING NOTARISATIONS..............................103
THIS AGREEMENT is a restatement of the (pound)1,000,000,000 term and revolving
credit agreement originally dated 18 October 2002, setting out the terms of
that agreement as amended on 10 December 2002, 12 January 2004 and 16 March
2005 and in its restated form is made:
BETWEEN
(1) RMC GROUP LIMITED (registered no. 00249776) (in its capacity as borrower
hereunder, the "Original Borrower");
(2) RMC GROUP LIMITED, CEMEX ESPANA, S.A., CEMEX CARACAS INVESTMENTS B.V.,
CEMEX CARACAS II INVESTMENTS B.V., CEMEX EGYPTIAN INVESTMENTS B.V., CEMEX
MANILA INVESTMENTS B.V., CEMEX AMERICAN HOLDINGS B.V. and CEMEX SHIPPING
B.V. (the "Original Guarantors");
(3) BANC OF AMERICA SECURITIES LIMITED, BNP PARIBAS, HSBC INVESTMENT BANK
PLC, THE ROYAL BANK OF SCOTLAND PLC and WESTLB AG, LONDON BRANCH as
mandated lead arrangers of the Facilities (the "Mandated Lead
Arrangers");
(4) THE ROYAL BANK OF SCOTLAND PLC as agent for the Banks (the "Agent"); and
(5) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions In this Agreement:
"Accession Memorandum" means a memorandum substantially in the form set
out in Schedule 6 (Form of Accession Memorandum).
"Additional Borrower" means any company which has become an Additional
Borrower in accordance with Clause 35 (Changes to the Obligors).
"Additional Guarantors" means any company which has become an Additional
Guarantor in accordance with Clause 35 (Changes to the Obligors).
"Advance" means a Revolving Advance or a Term Advance.
"Adjusted EBITDA" has the meaning given to it in Clause 21 (Financial
Condition).
"Amendment Agreement" means the amendment agreement in relation to this
Agreement entered into on 16 March 2005.
"Asia Fund" means Cemex Asia Holdings Ltd. ("CAH") or any other vehicles
used by the Parent or any other member of the Group to invest, or finance
investments already made, in companies involved in or assets dedicated to
the cement, concrete or aggregates business in Asia in both cases, such
company or vehicle, as applicable, with committed third parties with
minority interests other than members of the Group or CEMEX, S.A. de C.V.
and its Subsidiaries and with the Parent maintaining control of its
management.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"Authorised Signatory" means, in relation to an Obligor or proposed
Obligor, any person who is duly authorised (in such manner as may be
reasonably acceptable to the Agent) and in respect of whom the Agent has
received a certificate signed by a director or another Authorised
Signatory of such Obligor or proposed Obligor setting out the name and
signature of such person and confirming such person's authority to act.
"Available Commitment" means, in relation to a Bank at any time, its
Available Revolving Commitment and its Available Term Commitment.
"Available Revolving Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, its Revolving Commitment at such
time less its share of the Sterling Amount of Revolving Advances which
are then outstanding provided that such amount shall not be less than
zero.
"Available Revolving Facility" means, at any time, the aggregate amount
of the Available Revolving Commitments adjusted, in the case of any
proposed drawdown, so as to take into account:
(a) any reduction in the Revolving Commitment of a Bank pursuant to the
terms hereof;
(b) any Revolving Advance which, pursuant to any other drawdown, is to
be made; and
(c) any Revolving Advance which is due to be repaid,
on or before the proposed drawdown date.
"Available Term Commitment" means, in relation to a Bank at any time and
save as otherwise provided herein, its Term Commitment at such time less
the aggregate of its share of the Original Sterling Amount of the Term
Advances which are then outstanding.
"Available Term Facility" means, at any time, the aggregate amount of the
Available Term Commitments adjusted, in the case of any proposed
drawdown, so as to take into account any reduction in the Term Commitment
of a Bank on or before the proposed drawdown date pursuant to the terms
hereof.
"Bank" means any financial institution:
(a) listed in Part I of Schedule 1 (The Original Parties); or
(b) which has become a party hereto in accordance with Clause 34.4
(Assignments by Banks) or Clause 34.5 (Transfers by Banks),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"Borrowers" means the Original Borrower and each Additional Borrower,
provided that such company has not been released from its rights and
obligations hereunder in accordance with Clause 35.3 (Resignation of an
Additional Borrower).
"Business Day" means a day (other than a Saturday or Sunday) which is not
a public holiday and on which banks are open for general business in
London and:
(a) (in relation to any date for payment or purchase of a sum
denominated in a currency other than the euro) the principal
financial centre of the country of such currency; or
(b) (in relation to any date for payment or purchase of a sum
denominated in the euro) any TARGET Day.
"Capital Lease" means any lease that is capitalised on the balance sheet
prepared in accordance with Spanish GAAP.
"Cemex Existing Facility Agreement" means the US$3,800,000,000 facility
agreement dated 24 September 2004 made between the Parent as borrower,
certain subsidiaries of the Parent as guarantors and the banks defined
therein.
"Cemex Capital Contributions" has the meaning given to it in Clause 21
(Financial Condition).
"Clean-Up Date" means the date falling 180 days after 1 March 2005.
"Clean-Up Period" means the period commencing on 1 March 2005 and ending
on the Clean-Up Date.
"Commitment" means, in relation to a Bank at any time, the aggregate of
its Revolving Commitment and its Term Commitment.
"Compliance Certificate" means, in relation to the Parent, a certificate
substantially in the form set out in Part I of Schedule 5 (Form of
Compliance Certificate) and, in relation to the Original Borrower, a
certificate substantially in the form set out in Part II of Schedule 5
(Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking in the
standard form from time to time of the LMA or in such other form as may
be agreed between the Parent and the Agent.
"Default" means an Event of Default or any event or circumstance
specified in Clause 23 (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.
"Dispute" means any dispute referred to in Clause 42 (Jurisdiction).
"EBITDA" has the meaning given to it in Clause 21 (Financial Condition).
"Effective Date" has the meaning given to that term in the Amendment
Agreement.
"Environmental Claim" means any claim, proceeding or investigation by any
person in respect of any Environmental Law.
"Environmental Law" means any applicable law 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 amount to be advanced to or owing by
an Obligor under the Finance Documents on which interest for a given
period is to accrue:
(a) the percentage rate per annum determined by the Banking Federation
of the European Union for the offering of deposits in euro for such
period displayed at the appropriate page of the Telerate screen or,
if such page or such service shall cease to be available, such other
page or such other service for the purpose of displaying the
percentage rate per annum determined by the Banking Federation of
the European Union for the offering of deposits in euro for such
period as the Agent, after consultation with the Banks and the
Parent, shall select; or
(b) if no percentage rate per annum for the offering of deposits in euro
is displayed for the relevant period, the arithmetic mean (rounded
upwards to four decimal places) of the rates (as notified to the
Agent) at which each of the Reference Banks was offering to prime
banks in the European interbank market deposits in euro of such
amount and for a period comparable to the relevant Interest Period,
as the case may be, as of 11 a.m. (Brussels time) on the Quotation
Date for such period.
"Event of Default" means any circumstance described as such in Clause 23
(Events of Default).
"Existing Amount" means, in relation to any Term Advance and any two
successive Interest Periods relating thereto, the amount of such Term
Advance at the beginning of the last day of the first of those Interest
Periods less any part thereof falling to be repaid on such day.
"Existing Facilities" means:
(a) the (pound)450 million syndicated revolving credit facility made
available to the Original Borrower and others on the terms of a
credit agreement dated 8th November, 1999 (as amended) (but not, for
the avoidance of doubt, the amortising term loan outstanding as Term
B under that credit agreement);
(b) the following bilateral facilities made available to the Original
Borrower:
(i) (euro)38,346,891 facility with Westdeutsche Landesbank
(Ireland) plc;
(ii) (euro)38,346,891 facility with Bayerische Hypo-und
Vereinsbank AG;
(iii) (euro)38,340,000 facility with Dresdner Bank AG;
(iv) (euro)38,346,891 facility with ▇▇▇. ▇▇▇▇▇▇▇▇▇ jr & Cie;
(v) (euro)25,560,000 facility with Deutsche Bank AG; and
(vi) (euro)38,340,000 facility with Commerzbank AG.
(c) the (euro)306,775,129 facility made available to the Original
Borrower by Deutsche Bank AG, Commerzbank AG, Dresdner Bank AG and
National Westminster Bank AG.
"Facilities" means the Revolving Facility and the Term Facility.
"Facility Office" means, in relation to the Agent, the office identified
with its signature below or such other office as it may select by notice
and, in relation to any Bank, the office notified by it to the Agent in
writing prior to the date hereof (or, in the case of a Transferee, at the
end of the Transfer Certificate to which it is a party as Transferee) or
such other office as it may from time to time select by notice to the
Agent.
"Final Term Repayment Date" means the day which is 60 months after the
date hereof.
"Finance Charges" has the meaning given to it in Clause 21 (Financial
Condition).
"Finance Document" means this Agreement, any Accession Memorandum, any
fee letter delivered pursuant to Clause 25 (Commitment Commission and
Fees), the Syndication Letter and any other document designated as such
by the Agent and the Parent.
"Finance Parties" means the Agent, the Mandated Lead Arrangers and the
Banks.
"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;
(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) guarantees of Financial Indebtedness of other persons.
"GAAP" means, in relation to an Obligor, the generally accepted
accounting principles applying to it (i) in the country of its
incorporation; or (ii) in a jurisdiction agreed to by the Agent.
"Group" means the Parent and its Subsidiaries from time to time.
"Guarantees" has the meaning given to it in Clause 21 (Financial
Condition).
"Guarantors" means each Original Guarantor and each Additional Guarantor.
"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 concerning, among other
things, the Original Obligors and the proposed acquisition of RMC Group
Limited by Cemex UK Limited dated December 2004 which, at their request
and on their behalf, has been prepared in relation to this transaction,
approved by the Parent and distributed by The Royal Bank of Scotland plc
to selected financial institutions.
"Instructing Group" means:
(a) before any Advances have been made, a Bank or Banks whose
Commitments amount in aggregate to more than sixty-six and two
thirds per cent. of the Total Commitments; and
(b) thereafter, a Bank or Banks to whom in aggregate more than sixty-six
and two thirds per cent. of the Sterling Amount of the Loan is (or,
immediately prior to its repayment, was then) owed.
"Intellectual Property Rights" has the meaning given to it in Clause 21
(Financial Condition).
"Interest Period" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 5.1 (Interest Periods for
Term Advances); and
(b) in relation to an Unpaid Sum, any of those periods mentioned in
Clause 27.1 (Default Interest Periods).
"Legal Opinions" means the legal opinions delivered to the Agent pursuant
to the Amendment Agreement in relation to the Original Obligors or
pursuant to Clause 35 (Changes to the Obligors) in relation to any
Additional Obligors.
"LIBOR" means, in relation to any amount to be advanced to or owing by an
Obligor under the Finance Documents on which interest for a given period
is to accrue:
(a) the percentage rate per annum equal to the offered quotation which
appears on the page of the Telerate Screen which displays the
British Bankers Association Interest Settlement Rate for the
currency of the relevant amount (being currently 3740 or, as the
case may be, 3750) for such period at or about 11.00 a.m. on the
Quotation Date for such period or, if such page or such service
shall cease to be available, such other page or such other service
for the purpose of displaying the British Bankers Association
Interest Settlement Rate for such currency as the Agent, after
consultation with the Banks and the Parent, shall select; or
(b) if no quotation for the relevant currency and the relevant period is
displayed and the Agent has not selected an alternative service on
which a quotation is displayed, the arithmetic mean (rounded upwards
to four decimal places) of the rates (as notified to the Agent) at
which each of the Reference Banks was offering to prime banks in the
London interbank market deposits in the currency of such amount and
for a period comparable to the relevant Interest Period or Term, as
the case may be, as of 11.00 a.m. on the Quotation Date for such
period.
"LMA" means the Loan Market Association.
"Loan" means, at any time, the aggregate of the Revolving Loan and the
Term Loan.
"Loan Notes" means the loan notes (if any) issued to the shareholders of
the Original Borrower.
"Mandatory Cost" means the rate determined in accordance with Schedule 9
(Mandatory Cost).
"Margin" means from the Effective Date until delivery of the first
Compliance Certificate thereafter in accordance with Clause 20.2(b)
(Compliance Certificate), 0.60 per cent. per annum. Thereafter, the
Margin at any time is calculated by reference to the RMC Borrowing/EBITDA
Ratio. If the RMC Borrowing/EBITDA Ratio as shown by the Compliance
Certificate most recently delivered under Clause 20 (Financial
Information) is:
(a) greater than 3.0:1.0, the Margin shall be 0.90 per cent. per annum;
(b) greater than 2.5:1.0 but less than or equal to 3.0:1.0, the Margin
shall be 0.75 per cent. per annum;
(c) greater than 2.0:1.0 but less than or equal to 2.5:1.0, the Margin
shall be 0.60 per cent. per annum;
(d) greater than 1.5:1 but less than or equal to 2.0:1, the Margin shall
be 0.50 per cent. per annum; or
(e) less than or equal to 1.5:1.0, the Margin shall be 0.425 per cent.
per annum.
Any change in the Margin shall take effect in relation to any Advance
outstanding or current Interest Period at the time of receipt by the
Agent of the Compliance Certificate pursuant to Clause 20 (Financial
Information) at the time of that receipt provided that if at any time
there is an Event of Default or Default then the Margin shall be 0.90 per
cent. per annum for such time.
"Material Adverse Effect" means a material adverse effect on:
(a) the business, condition (financial or otherwise) or operations of
the Group taken as a whole;
(b) the rights or remedies of any Finance Party under the Finance
Documents; or
(c) the ability of any Obligor to perform its obligations under the
Finance Documents.
"Material Subsidiary" means, at any time:
(a) from the Effective Date, the companies listed in Schedule 11
(Material Subsidiaries); and
(b) in addition, following the date on which the first Compliance
Certificate is delivered in accordance with Clause 20.2(a)
(Compliance Certificate), any other Subsidiary of the Parent:
(i) which becomes a Subsidiary of the Parent after the Effective
Date or acquires substantial assets or businesses after the
Effective Date; and
(ii) which:
(A) has total assets representing 5 per cent. or more of
the total consolidated assets of the Group; and/or
(B) has revenues representing 5 per cent. or more of the
consolidated turnover of the Group,
in each case calculated on a consolidated basis and any
Holding Company of any such Subsidiary (save unless such
company is already an Obligor hereunder).
Compliance with the conditions set out in sub-paragraphs (i)
and (ii) of paragraph (b) shall be determined by reference
to the most recent Compliance Certificate supplied by the
Parent 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 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 Parent that a Subsidiary is
a Material Subsidiary shall, in the absence of manifest
error, be conclusive and binding on all Parties.
"Net Borrowings" has the meaning given to it in Clause 21 (Financial
Condition).
"New Amount" means, in relation to any Term Advance and any two
successive Interest Periods relating thereto, the amount of such Term
Advance at the beginning of the second of those Interest Periods, as
determined in accordance with Clause 4.3 (Amounts of Term Advances).
"Notarisation" has the meaning ascribed to such term in Clause 22.5
(Notarisation).
"Notice of Drawdown" means a notice substantially in the form set out in
Schedule 4 (Notice of Drawdown).
"Obligors" means the Borrowers and the Guarantors.
"Off-Balance Sheet Transactions" has the meaning given to it in Clause 21
(Financial Condition).
"Optional Currency" means Australian dollars, US dollars, Swiss francs,
Japanese yen and euros or any other currency (except sterling) which has
been previously approved in writing by the Agent (acting on the
instructions of all the Banks) as an optional currency for the purpose of
any drawdown at least three Business Days prior to delivery of the Notice
of Drawdown for such Advance or request under Clause 4.1 (Borrower's
Request for Optional Currency) and, at the time of drawdown or
denomination of Advance, the currency is:
(a) freely transferable and freely convertible into sterling; and
(b) available to banks in the relevant interbank market.
"Original Financial Statements" means:
(a) in relation to RMC Group Limited, its audited consolidated financial
statements for its financial year ended 31st December, 2003;
(b) in relation to each Guarantor (other than the Original Borrower, the
Parent, Cemex American Holdings B.V. and Cemex Shipping B.V.), its
respective audited unconsolidated (and, to the extent available, its
audited consolidated) financial statements for its financial year
ended 31 December 2003;
(c) in relation to the Parent, its audited consolidated financial
statements for its financial year ended 31 December 2003; and
(d) in relation to any Additional Borrower or Additional Guarantor, its
audited financial statements delivered pursuant to Schedule 7
(Additional Conditions Precedent).
"Original Obligors" means the Original Borrower and the Original
Guarantors.
"Original Sterling Amount" means:
(a) in relation to a Revolving Advance, the amount specified in the
Notice of Drawdown relating thereto, as the same may be reduced
pursuant to Clause 7.4 (Reduction of Available Revolving Commitment)
or, if such Revolving Advance is not denominated in sterling, the
equivalent of such amount (as the same may be so reduced) in
Sterling as at the date of such Notice of Drawdown; and
(b) in relation to a Term Advance:
(i) where such Advance came into existence as a result of a
drawing under the Term Facility, the amount specified as
such in the Notice of Drawdown relating thereto, as the same
may be reduced pursuant to Clause 3.3 (Reduction of
Available Term Commitment);
(ii) where such Term Advance came into existence upon the
consolidation of two or more Term Advances, the aggregate of
the Original Sterling Amounts of the Term Advances so
consolidated; and
(iii) where such Term Advance came into existence upon the
division of a Term Advance, the amount specified as such by
the Borrower pursuant to Clause 5.4 (Division of Term
Advances)
"Outlook" means a rating outlook of the Parent with regard to the
Parent's economic and/or fundamental business condition, as assigned by a
Rating Agency.
"Parent" means CEMEX Espana, S.A.
"Participating Member State" means any member state of the European Union
that adopts or has adopted the euro as its lawful currency at the
relevant time in accordance with legislation of the European Union
relating to the Economic and Monetary Union.
"Party" means a party to this Agreement.
"Permitted Notarisations" has the meaning ascribed to such term in Clause
22.5 (Notarisation).
"Permitted Securitisation" means a sale, transfer or other securitisation
of receivables and related assets by any member of the Group, including a
sale at a discount, provided that:
(a) such receivables have been transferred, directly or indirectly, by
the originator hereof to a Special Purpose Vehicle in a manner that
satisfies the requirements for an absolute conveyance, and not
merely a pledge, under the laws and regulations of the jurisdiction
in which such originator is organised;
(b) such Special Purpose Vehicle issues notes, certificates or other
obligations which are to be repaid from collections and other
proceeds of such receivables; and
(c) except for customary representations, warranties, covenants and
indemnities, such sale, transfer or other securitisation is carried
out on a non-recourse basis.
"Permitted Security" has the meaning given to it in Clause 22.6 (Negative
pledge).
"Proportion" means, in relation to a Bank:
(a) whilst no Advances are outstanding, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments
are then zero, by its Commitment to the Total Commitments
immediately prior to their reduction to zero); or
(b) whilst at least one Advance is outstanding, the proportion borne by
its share of the Sterling Amount of the Loan to the Sterling Amount
of the Loan.
"Qualifying Lender" means a Bank which is:
(a) a bank for the purposes of Section 349 of the Income and Corporation
Taxes Act 1988 which is within the charge to United Kingdom
corporation tax as regards interest payable or paid to it under this
Agreement and is beneficially entitled to such interest; or
(b) not resident for tax purposes in the United Kingdom but is a
financial institution which is resident in a country with which the
United Kingdom has an appropriate double taxation treaty pursuant to
which that financial institution is entitled to complete exemption
from United Kingdom tax on interest and is entitled to apply to
receive interest under this Agreement without withholding or
deduction on account of tax and is beneficially entitled to such
interest or is otherwise entitled to receive such interest without
withholding or deduction on account of tax.
"Quotation Date" means, in relation to any period for which an interest
rate is to be determined under the Finance Documents, the day on which
quotations would ordinarily be given by prime banks in the relevant
interbank market for deposits in the currency in relation to which such
rate is to be determined for delivery on the first day of that period,
provided that, if, for any such period, quotations would ordinarily be
given on more than one date, the Quotation Date for that period shall be
the last of those dates.
"Rating" means at any time the solicited long term credit rating or the
senior implied rating of the Parent or an issue of securities of or
guaranteed by the Parent, where the rating is based primarily on the
senior unsecured credit risk of the Parent 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 Standard & Poors Corporation or ▇▇▇▇▇'▇ Investors
Service Inc.
"Reference Banks" means, in relation to LIBOR, EURIBOR and Mandatory
Cost, the principal London offices of The Royal Bank of Scotland plc, BNP
Paribas and HSBC Bank plc.
"Relevant Period" has the meaning given to it in Clause 21 (Financial
Condition).
"Repayment Date" means, in relation to any Revolving Advance, the last
day of the Term thereof.
"Repeated Representations" means each of the representations set out in
Clause 19.1 (Status) to Clause 19.6 (Governing law and enforcement),
Clause 19.9 (No default), paragraphs (a) and (b) of Clause 19.11
(Financial statements), Clause 19.12 (Pari passu ranking), 19.13 (No
proceedings pending or threatened), Clause 19.14 (No winding-up) and
Clause 19.15 (Material Adverse Change).
"Resignation Notice" means, in relation to a Borrower, a notice
substantially in the form set out in Part I of Schedule 8 (Form of
Resignation Notice) and, in relation to a Guarantor, a notice
substantially in the form set out in Part II of Schedule 8 (Form of
Resignation Notice).
"Revolving Advance" means an advance made or to be made by the Banks
under the Revolving Facility.
"Revolving Availability Period" means in relation to the Revolving
Facility the period from and including the Syndication Date to and
including the date one month prior to the Revolving Termination Date.
"Revolving Commitment" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name under the
heading Revolving Commitment in Part I of Schedule 1 (The Banks).
"Revolving Facility" means the multicurrency revolving loan facility
granted to the Borrowers under paragraph (a) of Clause 2.1 (Grant of the
Facilities).
"Revolving Loan" means, at any time, the aggregate principal amount of
the outstanding Revolving Advances.
"Revolving Termination Date" means the day which is 72 months after the
date hereof.
"RMC Adjusted EBITDA" has the meaning given to it in Clause 21 (Financial
Condition).
"RMC Borrowing/EBITDA Ratio" means, at any time, the ratio as at the end
of the last RMC Relevant Period of RMC Consolidated Total Net Borrowings
as at the end of that RMC Relevant Period to RMC Adjusted EBITDA for the
last RMC Relevant Period.
"RMC Cemex Capital Contributions" has the meaning given to it in Clause
21 (Financial Condition).
"RMC Consolidated Net Worth" has the meaning given to it in Clause 21
(Financial Condition).
"RMC Consolidated Net Interest Payable" has the meaning given to it in
Clause 21 (Financial Condition).
"RMC Consolidated Total Net Borrowings" has the meaning given to it in
Clause 21 (Financial Condition).
"RMC EBITDA" has the meaning given to it in Clause 21 (Financial
Condition).
"RMC Group" means RMC Group Limited and its Subsidiaries from time to
time.
"RMC Indebtedness for Borrowed Money" has the meaning given to it in
Clause 21 (Financial Condition).
"RMC Relevant Period" has the meaning given to it in Clause 21 (Financial
Condition).
"RMC Royalty Expenses" has the meaning given to it in Clause 21
(Financial Condition).
"RMC Subordinated Debt" has the meaning given to it in Clause 21
(Financial Condition).
"Rolling Basis" has the meaning given to it in Clause 21 (Financial
Condition).
"Rollover Advance" means a Revolving Advance which is used to refinance a
maturing Revolving Advance and which is the same amount or less and the
same currency as such maturing Revolving Advance and is to be drawn on
the day such maturing Revolving Advance is to be repaid.
"Royalty Expenses" has the meaning given to it in Clause 21 (Financial
Condition).
"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.
"Spanish Public Document" means any obligation in an Escritura Publica or
documento intervenido.
"Special Purpose Vehicle" means a securitisation trust or fund, limited
liability company, partnership or other special purpose person
established to implement a securitisation of receivables, provided that
the business of such person is limited to acquiring, servicing and
funding receivables and related assets and activities incidental thereto.
"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.
"Sterling Amount" means:
(a) in relation to an Advance, its Original Sterling Amount as reduced
by the proportion (if any) of such Advance which has been repaid;
and
(b) in relation to the Loan, the aggregate of the Sterling Amounts of
the outstanding Advances.
"Subordinated Debt" has the meaning given to it in Clause 21 (Financial
Condition).
"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;
(a) more than half the issued share capital of which is beneficially
owned, directly or indirectly by the first mentioned company or
corporation; or
(b) 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 to
direct its affairs and/or to control the composition of its board of
directors or equivalent body.
"Syndication Date" means the last day of the Syndication Period.
"Syndication Letter" means the Syndication Letter dated on or about the
date of this Agreement between the Original Borrower, the Mandated Lead
Arrangers and the Banks originally party to this Agreement in relation to
the syndication process and other arrangements.
"Syndication Period" has the meaning ascribed to it in the Syndication
Letter.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for settlement of
payments in euro.
"Term" means, save as otherwise provided herein, in relation to any
Revolving Advance, the period for which such Revolving Advance is
borrowed, as specified in the Notice of Drawdown relating thereto.
"Term Advance" means an advance (as from time to time consolidated,
divided or reduced by repayment) made or to be made by the Banks under
the Term Facility.
"Term Availability Period" means, in relation to the Term Facility, the
period from and including the Syndication Date to and including the date
90 days after the Syndication Date.
"Term Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name under the
heading Term Commitment in Part I of Schedule 1 (The Banks).
"Term Facility" means the multicurrency term loan facility granted to the
Borrower under paragraph (b) of Clause 2.1 (Grant of the Facilities).
"Term Loan" means, at any time, the, aggregate principal amount of
outstanding Term Advances.
"Term Repayment Date" means each of the dates set out in Clause 12
(Repayment of the Term Facility) including the Final Term Repayment Date.
"Total Borrowings" has the meaning given to it in Clause 21 (Financial
Condition).
"Total Commitments" means, at any time, the aggregate of the Banks'
Commitments. "Transfer Certificate" means a certificate substantially in
the form set out in Schedule 2 (Form of Transfer Certificate) signed by a
Bank and a Transferee under which:
(a) such Bank seeks to procure the transfer to such Transferee of all or
a part of such Bank's rights, benefits and obligations under the
Finance Documents upon and subject to the terms and conditions set
out in Clause 34.3 (Assignments and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it will assume
as a result of delivery of such certificate to the Agent as
contemplated in Clause 34.5 (Transfers by Banks).
"Transfer Date" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in such Transfer Certificate.
"Transferee" means a person to which a Bank seeks to transfer by novation
all or part of such Bank's rights, benefits and obligations under the
Finance Documents.
"Unpaid Sum" means the unpaid balance of any of the sums referred to in
Clause 27.1 (Default Interest Periods).
1.2 Interpretation
Any reference in this Agreement to:
an "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;
the "Agent", any "Bank" or any "Mandated Lead Arranger" shall be
construed so as to include its and any subsequent successors and
permitted transferees in accordance with their respective interests;
a document being in an "agreed form" means that document in the form
initialled by or on behalf of the Parent and the Agent;
"continuing", in relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived in accordance
with the terms hereof and, in relation to a Default, one which has not
been remedied within the relevant grace period or waived in accordance
with the terms hereof;
the "equivalent" on any date in one currency (the "first currency") of an
amount denominated in another currency (the "second currency") is a
reference to the amount of the first currency which could be purchased
with the amount of the second currency at the spot rate of exchange
quoted by the Agent at or about 11.00 a.m. on such date for the purchase
of the first currency with the second currency;
"indebtedness" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or repayment
of money, whether present or future, actual or contingent;
a "law" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory body
of court;
a "member state" shall be construed as a reference to a member state of
the European Union;
a "month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that:
(a) if any such numerically corresponding day is not a Business Day,
such period shall end on the immediately succeeding Business Day to
occur in that next succeeding calendar month or, if none, it shall
end on the immediately preceding Business Day; and
if there is no numerically corresponding day in that next succeeding
calendar month, that period shall end on the last Business Day in
that next succeeding calendar month.
The above rules will only apply to the last month of any period. All
references to months and monthly shall be construed accordingly.
a "person" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
"repay" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include prepay (or, as the case may be, the
corresponding derivative form thereof);
a "successor" shall be construed so as to include an assignee or
successor in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"tax" shall be construed so as to include any tax, levy, impost, duty or
other charge 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) of any jurisdiction;
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time of
any jurisdiction;
a "wholly-owned Subsidiary" of a company or corporation shall be
construed as a reference to any company or corporation which has no other
members except that other company or corporation and that other company's
or corporation's wholly-owned Subsidiaries or persons acting on behalf of
that other company or corporation or its wholly-owned Subsidiaries; and
the "winding-up", "dissolution" or "administration" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law 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, bankruptcy, winding-up, reorganisation, dissolution or
administration.
1.3 Currency Symbols and Definitions
(a) (pound) and sterling denote lawful currency of the United Kingdom;
US$ and US dollars denote lawful currency of the United States of
America; A$ and Australian dollars denote lawful currency of the
Commonwealth of Australia; Swiss francs denotes lawful currency of
Switzerland; and Japanese yen denotes lawful currency of Japan.
(b) euro, (euro) and EUR means the single currency of the Participating
Member States.
1.4 Agreements and Statutes
Any reference in this Agreement to:
(a) this Agreement or any other agreement or document shall be construed
as a reference to this Agreement or, as the case may be, such other
agreement or document as the same may have been, or may from time to
time be, amended, varied, novated or supplemented; and
(b) a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
1.5 Headings
Clause and Schedule headings are for ease of reference only.
1.6 Time
Any reference in this Agreement to a time of day shall, unless a
contrary indication appears, be a reference to London time.
1.7 Third Party Rights
A person who is not a Party has no right under the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇ to enforce or enjoy the benefit of any term of
this Agreement other than any director, officer or employee of the Agent
or the Mandated Lead Arrangers as referred to in, and for the purposes
of, Clause 33.7 (No Actions).
2. THE FACILITIES
2.1 Grant of the Facilities
The ▇▇▇▇▇ ▇▇▇▇▇ to the Borrowers, upon the terms and subject to the
conditions hereof:
(a) a multicurrency revolving loan facility in an aggregate amount of
(pound)425,558,038 or its equivalent from time to time in Optional
Currencies; and
(b) a multicurrency term loan facility in an aggregate amount of
(pound)178,796,154 or its equivalent from time to time in Optional
Currencies.
2.2 Purpose and Application of the Term Facility The proceeds of each Term
Advance will be applied in or towards:
(a) refinancing the Existing Facilities; and/or
(b) general corporate purposes
and none of the Finance Parties shall be obliged to concern themselves
with such application.
2.3 Purpose and Application of the Revolving Facility
The Revolving Facility is intended for general corporate purposes and,
accordingly, each Borrower shall apply all amounts raised by it hereunder
in or towards satisfaction of its general corporate purposes and none of
the Finance Parties shall be obliged to concern themselves with such
application.
2.4 Conditions Precedent
Save as the Banks may otherwise agree, none of the Borrowers may deliver
any Notice of Drawdown requesting a Term Advance or a Revolving Advance
unless:
(a) the Agent has confirmed to the Original Borrower and the Banks that
it has received all of the documents and other evidence listed in
Schedule 3 (Conditions Precedent) and that each is, in form and
substance, satisfactory to the Agent; and
(b) the Syndication Period has expired.
2.5 Banks' Obligations Several
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of an
Obligor towards any other party hereto nor shall any other party be
liable for the failure by such Bank to perform its obligations hereunder.
2.6 Banks' Rights Several
The rights of each Bank are several and any debt arising hereunder at any
time from an Obligor to any of the other parties hereto shall be a
separate and independent debt. Each such party shall be entitled to
protect and enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary for
any party hereto to be joined as an additional party in any proceedings
for this purpose).
3. UTILISATION OF THE TERM FACILITY
3.1 Drawdown Conditions for Term Advances
A Term Advance will be made by the Banks to a Borrower if:
(a) not less than one Business Day, in the case of any Term Advance to
be denominated in sterling, or three Business Days, in the case of
any Term Advance to be denominated in an Optional Currency, before
the proposed date for the making of such Term Advance, the Agent has
received a completed Notice of Drawdown from such Borrower;
(b) the proposed date for the making of such Term Advance is a Business
Day within the Term Availability Period;
(c) the proposed Original Sterling Amount of such Term Advance is (a)
(if less than the Available Term Facility) a minimum amount of
(pound)25,000,000 and an integral multiple of (pound)5,000,000 or
(b) equal to the amount of the Available Term Facility;
(d) there would not, immediately after the making of such Term Advance,
be more than six Term Advances outstanding; and
(e) on and as of the proposed date for the making of such Term Advance
(i) no Event of Default or Default is continuing or would result
from the proposed Term Advance and (ii) the Repeated Representations
are true in all material respects.
3.2 Each Bank's Participation in Term Advances
Each Bank will participate through its Facility Office in each Term
Advance made pursuant to Clause 3.1 (Drawdown Conditions for Term
Advances) in the proportion borne by its Available Term Commitment to the
Available Term Facility immediately prior to the making of that Term
Advance.
3.3 Reduction of Available Term Commitment
If a Bank's Available Term Commitment is reduced in accordance with the
terms hereof after the Agent has received the Notice of Drawdown for a
Term Advance and such reduction was not taken into account in the
Available Term Facility, then both the Original Sterling Amount and the
amount of that Term Advance shall be reduced accordingly.
4. MULTICURRENCY OPTION
4.1 Borrower's Request for Optional Currency
If a Term Advance has been or is to be made to a Borrower, the relevant
Borrower may, not later than three Business Days before the first day of
an Interest Period, request (by notice to the Agent) that any Term
Advance be denominated in any Optional Currency during such Interest
Period, in which event such Term Advance shall, subject to Clause 4.2
(Conditions for Denominating a Term Advance in an Optional Currency), be
denominated in such Optional Currency. If the relevant Borrower does not
make such a request, each Term Advance shall be denominated in the
currency in which it was denominated during the preceding Interest
Period.
4.2 Conditions for Denominating a Term Advance in an Optional Currency
If a Term Advance is to be denominated in an Optional Currency during any
Interest Period relating thereto, but:
(a) no later than one hour after the time at which the rate is to be
determined on the Quotation Date for such Interest Period, the Agent
notifies the relevant Borrower and the Banks that the Agent is of
the opinion by reason of circumstances affecting the London
interbank market generally that it is not feasible for such Term
Advance to be made in such Optional Currency or, as the case may be,
denominated in such Optional Currency; or
(b) to give effect to such request would cause the Term Loan to be
denominated in more than four Optional Currencies,
the agent shall notify the relevant Borrower and the Banks and such Term
Advance shall be denominated in sterling in an amount equal to the
Original Sterling Amount.
4.3 Amounts of Term Advances
The amount of a Term Advance during an Interest Period relating thereto
(in determining which it shall be assumed that any part of such Term
Advance falling to be repaid on or before the last day of the preceding
Interest Period, if any, relating thereto is duly repaid) shall be:
(a) the Sterling Amount of such Term Advance if such Term Advance is to
be denominated in sterling during such Interest Period; or
(b) if such Term Advance is to be denominated in an Optional Currency,
the amount of such Optional Currency which could be purchased with
the Sterling Amount of such Term Advance at the spot rate of
exchange quoted by the Agent at or about 11.00 a.m. on the third
Business Day preceding the first day of such Interest Period for the
purchase of such Optional Currency with sterling,
provided that if a Term Advance is to be denominated in the same Optional
Currency during two successive Interest Periods and the amount of such
Term Advance, calculated in accordance with paragraph (b), is no more
than five per cent. higher or lower than its Existing Amount, its New
Amount shall be its Existing Amount.
4.4 Currency Change
If a Term Advance is to be denominated in different currencies during two
successive Interest Periods, then, on the last day of the first of those
Interest Periods:
(a) each Bank shall pay an amount equal to its portion of the New Amount
of such Term Advance to the Agent, who shall hold the same on behalf
of such Bank;
(b) the Agent shall:
(i) apply the amount so made available to it by each Bank in or
towards the purchase of such Bank's portion of the Existing
Amount of such Term Advance and pay the amount so purchased
to such Bank; and
(ii) pay any portion of the amount made available to it by the
Banks and not applied in accordance with paragraph (b)(i) to
the relevant Borrower or, if a Default or an Event of
Default shall have occurred and the Agent or an Instructing
Group so determines, to the Banks, any amount so paid to the
Banks being treated as if it were a prepayment made by the
relevant Borrower, in respect of a Term Advance, under
Clause 13.2 (Prepayment of the Term Loan)); and
(c) the relevant Borrower shall pay to the Agent for the account of each
Bank a sum equal to the amount (if any) by which such Bank's share
of the Existing Amount of such Term Advance exceeds the portion
thereof purchased by the Agent pursuant to paragraph (b)(i).
4.5 Same Currency
Subject to Clause 4.3 (Amounts of Term Advances), if a Term Advance is to
be denominated in the same Optional Currency during two successive
Interest Periods and there is any difference between the Existing Amount
of such Term Advance and its New Amount, then, on the last day of the
first of those Interest Periods:
(a) if the Existing Amount of such Term Advance exceeds its New Amount,
the relevant Borrower shall pay to the Agent for the account of the
Banks an amount equal to the amount of such excess; or
(b) if the New Amount of such Term Advance exceeds its Existing Amount:
(i) each Bank shall pay to the Agent for the account of the
relevant Borrower an amount equal to its portion of the
amount of such excess; or
(ii) if a Default or an Event of Default shall have occurred and
the Agent or an Instructing Group so determines, no such
payments shall be made and a sum equal to the aggregate
amount which would have been so payable shall be treated as
having been prepaid by the relevant Borrower, in respect of
a Term Advance, under Clause 13.2 (Prepayment of the Term
Loan).
5. INTEREST PERIODS FOR TERM ADVANCES
5.1 Interest Periods for Term Advances
The period for which a Term Advance is outstanding shall be divided into
successive periods each of which (other than the first, which shall begin
on the day such Term Advance is made) shall start on the last day of the
preceding such period.
5.2 Duration of Interest Periods for Term Advances
The duration of each Interest Period in respect of a Term Advance shall,
save as otherwise provided herein, be one, two, three or six months, in
each case as the Borrower to which such Term Advance is made may by not
less than one Business Day's, in the case of any Term Advance denominated
in sterling, or three Business Days', in the case of any Term Advance
denominated in an Optional Currency, prior notice to the Agent select,
provided that:
(a) if such Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest Period
shall, subject to paragraph (b), be one month; and
(b) any Interest Period which would otherwise end during the month
preceding, or extend beyond, a Term Repayment Date shall be of such
duration that it shall end on such Term Repayment Date.
5.3 Consolidation of Term Advances
If two or more Interest Periods relating to Term Advances denominated in
the same currency and borrowed by the same Borrower end at the same time
then, on the last day of those Interest Periods, the Term Advances to
which they relate shall be consolidated into and treated as a single Term
Advance.
5.4 Division of Term Advances
The Borrower to which such Term Advance is made may, by not less than one
Business Day's, in the case of any Term Advance denominated in sterling,
or three Business Days', in the case of any Term Advance denominated in
an Optional Currency, prior notice to the Agent, direct that any Term
Advance shall, at the beginning of any Interest Period relating thereto,
be divided into (and thereafter, save as otherwise provided herein,
treated in all respects as) two or more Term Advances having such
Original Sterling Amounts (in aggregate, equalling the Sterling Amount of
the Term Advance being so divided) as shall be specified by such Borrower
in such notice, provided that such Borrower shall not be entitled to make
such a direction if:
(a) as a result of so doing, there would be more than six outstanding
Term Advances; or
(b) any Term Advance thereby coming into existence would have an
Original Sterling Amount of less than (pound)25,000,000.
5.5 Consolidated and Divided Term Advances
For the purpose of Clause 4 (Multicurrency Option), a Term Advance which
comes into existence upon the consolidation of two or more existing Term
Advances or the division of an existing Term Advance shall be treated as
having existed prior to the date on which it comes into existence and:
(a) in the case of a consolidated Term Advance, having an amount equal
to the aggregate of the amounts of the Term Advances so
consolidated;
(b) in the case of a divided Term Advance, having an amount equal to the
portion of the Term Advance so divided which bears the same
proportion to the amount of the Term Advance so divided as the
Sterling Amount of the Term Advance coming into existence bears to
the Sterling Amount of the Term Advance so divided.
6. PAYMENT AND CALCULATION OF INTEREST ON TERM ADVANCES
6.1 Payment of Interest
On the last day of each Interest Period relating to a Term Advance (and,
if the Interest Period of such Term Advance exceeds six months, on the
expiry of each period of six months during that Interest Period) the
Borrower to which such Term Advance has been made shall pay accrued
interest on the Term Advance to which such Interest Period relates.
6.2 Calculation of Interest
The rate of interest applicable to a Term Advance from time to time
during an Interest Period relating thereto shall be the rate per annum
which is the sum of:
(a) the relevant Margin from time to time during such period;
(b) the Mandatory Cost in respect thereof at such time; and
(c) LIBOR, or in relation to any Term Advance in euro, EURIBOR on the
Quotation Date therefor.
7. UTILISATION OF THE REVOLVING FACILITY
7.1 Drawdown Conditions for Revolving Advances
A Revolving Advance will be made by the Banks to a Borrower if:
(a) not more than one Business Day, in the case of any Revolving Advance
denominated in sterling, or three Business Days, in the case of any
Revolving Advance denominated in an Optional Currency, before the
proposed date for the making of such Revolving Advance, the Agent
has received a completed Notice of Drawdown from such Borrower;
(b) the proposed date for the making of such Revolving Advance is a
Business Day within the Revolving Availability Period;
(c) the proposed Original Sterling Amount of such Revolving Advance is
(i) (if less than the Available Revolving Facility) a minimum amount
of (pound)25,000,000 and an integral multiple of (pound)5,000,000 or
(ii) equal to the amount of the Available Revolving Facility;
(d) the proposed Term of the Revolving Advance requested is a period of
one, two, three or six months or such other period as the Banks may
agree in each case ending on or before the Revolving Termination
Date;
(e) there would not, immediately after the making of such Revolving
Advance, be more than ten Revolving Advances outstanding;
(f) on and as of the proposed date for the making of such Revolving
Advance, (i) no Event of Default or (save in relation to a Rollover
Advance) Default is continuing or would result from the proposed
Revolving Advance and (ii) the Repeated Representations are true in
all material respects,
then, save as otherwise provided herein, such Revolving Advance will be
made in accordance with the provisions hereof.
7.2 Conditions for Denominating a Revolving Advance in an Optional
Currency If a Borrower requests that a Revolving Advance be denominated
in an Optional Currency but:
(a) no later than one hour after the time at which the rate is to be
determined on the Quotation Date for such Revolving Advance, the
Agent notifies the relevant Borrower and the Banks that, by reason
of circumstances affecting the London interbank market generally,
the Agent is of the opinion that it is not feasible for such
Revolving Advance to be denominated in such Optional Currency; or
(b) to give effect to such request would cause the Revolving Loan to be
denominated in more than four Optional Currencies,
the Agent shall notify the relevant Borrower and the Banks and such
Revolving Advance shall be denominated in sterling.
7.3 Each Bank's Participation in Revolving Advances
Each Bank will participate through its Facility Office in each Revolving
Advance made pursuant to this Clause 7 in the proportion borne by its
Available Revolving Commitment to the Available Revolving Facility
immediately prior to the making of that Revolving Advance.
7.4 Reduction of Available Revolving Commitment
If a Bank's Revolving Commitment is reduced in accordance with the terms
hereof after the Agent has received the Notice of Drawdown for a
Revolving Advance and such reduction was not taken into account in the
Available Revolving Facility, then both the Original Sterling Amount and
the amount of that Revolving Advance shall be reduced accordingly.
8. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES
8.1 Payment of Interest
On the Repayment Date relating to each Revolving Advance (and, if the
Term of such Revolving Advance exceeds six months, on the expiry of each
period of six months during such Term) the Borrower to which such
Revolving Advance has been made shall pay accrued interest on that
Revolving Advance.
8.2 Calculation of Interest
The rate of interest applicable to a Revolving Advance from time to time
during its Term shall be the rate per annum which is the sum of:
(a) the relevant Margin from time to time during such period;
(b) the Mandatory Cost; and
(c) LIBOR or, in relation to any Revolving Advance in euro, EURIBOR on
the Quotation Date therefor.
9. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
9.1 Market Disruption
If, in relation to any Advance:
(a) LIBOR or, if applicable, EURIBOR is to be determined by reference to
Reference Banks and at or about the time at which the rate is to be
determined on the Quotation Date for the relevant Interest Period or
Term none or only one of the Reference Banks supplies a rate for the
purpose of determining LIBOR or, if applicable, EURIBOR for the
relevant Interest Period or Term; or
(b) before the close of business in London on the Quotation Date for
such Advance the Agent has been notified by a Bank or each of a
group of Banks to whom in aggregate thirty-five per cent. or more of
such Advance is owed (or, in the case of an undrawn Advance, if
made, would be owed) that LIBOR or, if applicable, EURIBOR does not
accurately reflect the cost of funding its participation in such
Advance,
then, the Agent shall notify the Parent, the relevant Borrower and the
Banks of such event and, notwithstanding anything to the contrary in this
Agreement, Clause 9.2 (Substitute Interest Period and Interest Rate)
shall apply to such Advance.
9.2 Substitute Interest Period and Interest Rate
If paragraph (a) of Clause 9.1 (Market Disruption) applies to an Advance,
the duration of the relevant Interest Period or Term shall be one month
or, if less, such that it shall end on a Term Repayment Date (in the case
of a Term Advance) or the Revolving Termination Date (in the case of a
Rollover Advance). If either paragraph (a) or (b) of Clause 9.1 (Market
Disruption) applies to an Advance, the rate of interest applicable to
such Advance during the relevant Interest Period or Term shall (subject
to any agreement reached pursuant to Clause 9.3 (Alternative Rate)) be
the rate per annum which is the sum of:
(a) the Margin at such time;
(b) the Mandatory Cost; and
(c) the rate per annum determined by the Agent to be the arithmetic mean
(rounded upwards to four decimal places) of the rates notified by
each Bank to the Agent before the last day of the relevant Interest
Period or Term to be those which express as a percentage rate per
annum the cost to each Bank of funding from whatever sources it may
reasonably select its portion of such Advance during such Interest
Period or Term.
9.3 Alternative Rate
If (a) either of those events mentioned in paragraph (a) and (b) of
Clause 9.1 (Market Disruption) occurs in relation to an Advance or (b) by
reason of circumstances affecting the London interbank market during any
period of three consecutive Business Days LIBOR is not available for
sterling to prime banks in the London interbank market, then if the Agent
or the Parent so requires, the Agent and the Parent shall enter into
negotiations (for a period of not more than 30 days) with a view to
agreeing a substitute basis (i) for determining the rates of interest
from time to time applicable to the Advances and/or (ii) upon which the
Advances may be maintained (whether in sterling or some other currency)
thereafter and any such substitute basis that is agreed shall take effect
in accordance with its terms and be binding on each party hereto,
provided that the Agent may not agree any such substitute basis without
the prior consent of each Bank.
10. NOTIFICATION
10.1 Advances
Not less than three Business Days, in the case of any Advance denominated
in an Optional Currency, or one Business Day, in the case of any Advance
denominated in sterling, before the first day of an Interest Period or
Term, the Agent shall notify each Bank of:
(a) the Facility that is to be utilised and the name of the Borrower;
(b) the proposed Sterling Amount of the relevant Advance;
(c) the proposed length of the relevant Interest Period or Term;
(d) whether or not such Advance is to be denominated in an Optional
Currency (and, if so, the amount of such Advance in the relevant
Optional Currency); and
(e) the aggregate principal amount of the relevant Advance allocated to
such Bank pursuant to Clause 7.3 (Each Bank's Participation in
Revolving Advances), or Clause 3.2 (Each Bank's Participation in
Term Advances).
10.2 Interest Rate Determination
The Agent shall promptly notify the relevant Borrower and the Banks of
each determination of LIBOR, EURIBOR, the Margin, the Mandatory Cost and
other costs, if any.
10.3 Changes to Advances or Interest Rates
The Agent shall promptly notify the relevant Borrower and the Banks of
any change to (a) the proposed currency of an Advance occasioned by the
operation of Clause 7.2 (Conditions for Denominating a Revolving Advance
in an Optional Currency) or Clause 4.2 (Conditions for Denominating a
Term Advance in an Optional Currency), (b) the proposed length of an
Interest Period or Term or (c) any interest rate occasioned by the
operation of Clause 9 (Market Disruption and Alternative Interest Rates).
11. REPAYMENT OF THE REVOLVING FACILITY
The Borrower shall repay the Revolving Advance made to it in full on the
Repayment Date relating thereto.
12. REPAYMENT OF THE TERM FACILITY
The Parent shall procure (and each Borrower which has drawn a Term
Advance shall repay its share of the Term Loan in order to ensure) that
the Term Loan is repaid in full by the Final Term Repayment Date and in
part by each Term Repayment Date set out in the table below by the
aggregate amount set beside that Term Repayment Date in the table below.
--------------------------------------- ------------------------------------
Term Repayment Date Aggregate Amount of Term Loan
to have been repaid
--------------------------------------- ------------------------------------
36 months from 18 October 2002 (pound) 5,192,673
--------------------------------------- ------------------------------------
48 months from 18 October 2002 (pound) 63,060,500
--------------------------------------- ------------------------------------
60 months from 18 October 2002 (pound) 178,796,154
--------------------------------------- ------------------------------------
13. CANCELLATION AND PREPAYMENT
13.1 Cancellation of the Term Facility
The Parent may, by giving to the Agent not less than five Business Days'
prior notice to that effect, cancel the whole or any part (being an
amount or integral multiple of (pound)50,000,000) of the Available Term
Facility. Any such cancellation shall reduce the Available Term
Commitment and Term Commitment of the Banks rateably.
13.2 Prepayment of the Term Loan
The Borrower to which a Term Advance has been made may, if it has given
to the Agent not less than five Business Days' prior notice to that
effect and subject always to the provisions of Clause 27.4 (Break Costs),
prepay the whole of any Term Advance or any part of any Term Advance
(being an amount such that the Sterling Amount of the Term Advance will
be reduced by an amount or integral multiple of (pound)50,000,000).
13.3 Cancellation of the Revolving Facility
The Parent may, by giving to the Agent not less than five Business Days'
prior notice to that effect, cancel the whole or any part (being an
amount or integral multiple of (pound)50,000,000) of the Available
Revolving Facility. Any such cancellation shall reduce the Sterling
Amount of the Available Revolving Commitment and Revolving Commitment of
each Bank rateably.
13.4 Prepayment of the Revolving Loan
The Borrower to which a Revolving Advance has been made may, by giving to
the Agent not less than five Business Days' prior notice to that effect
and subject always to the provisions of Clause 27.4 (Break Costs), prepay
the whole or any part of a Revolving Advance (being an amount such that
the Sterling Amount of the Revolving Loan will be reduced by an amount or
integral multiple of (pound)50,000,000).
13.5 Notice of Cancellation or Prepayment
Any notice of cancellation or prepayment given by a Borrower pursuant to
this Clause 13.5 shall be irrevocable, shall specify the date upon which
such cancellation or prepayment is to be made and the amount of such
cancellation or prepayment and, in the case of a notice of prepayment,
shall oblige the relevant Borrower to make such prepayment on such date.
13.6 Repayment of a Bank's Share of the Loan
If:
(a) any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 14.1 (Tax Gross-up); or
(b) any Bank claims indemnification from the Parent under Clause 14.2
(Tax Indemnity) or Clause 16.1 (Increased Costs),
the Parent may, whilst such circumstance continues, give the Agent at
least ten Business Days' notice (which notice shall be irrevocable) of
its intention to procure the repayment of such Bank's share of the loan.
If the Parent gives such notice to the Agent, each Borrower to which an
Advance has been made shall repay such Bank's portion of the Advance to
which such Interest Period or Term relates, subject always to the
provisions of Clause 27.4 (Break Costs). Any repayment of a Term Advance
so made after the last day of the Term Availability Period shall reduce
rateably the obligation under Clause 12 (Repayment of the Term Facility)
on a pro rata basis.
13.7 No Further Advances
A Bank for whose account a repayment is to be made under Clause 13.6
(Repayment of a Bank's Share of the Loan) shall not be obliged to
participate in the making of Advances on or after the date upon which the
Agent receives the Parent's notice of its intention to procure the
repayment of such Bank's share of the Loan, and such Bank's Available
Revolving Commitment and Available Term Commitment shall be reduced to
zero.
13.8 Mandatory Prepayment on Change of Control
(a) If any person or group of connected persons which does not at the
Effective Date have direct or indirect control of RMC Group Limited
acquires such control then:
(i) the Parent will give notice of that event to the Agent
promptly on becoming aware thereof;
(ii) following receipt of that notice, or if any Bank otherwise
becomes aware of such an event and notifies the Agent, the
Agent (acting on the instructions of an Instructing Group)
will enter into negotiations with the Parent in good faith
for a period not exceeding 30 days (the Negotiation Period)
as to the terms on which the Banks may be prepared (without
obligation) to continue to provide financing facilities to
the Borrowers (the "Revised Terms"); and
(iii) during the Negotiation Period, no further Advances (other
than Rollover Advances) may be made.
(b) If the Revised Terms have not been agreed within 5 days of the end
of the Negotiation Period, the Agent may (after receipt of a notice
from a Bank that it is not prepared to continue to provide financing
facilities on the Revised Terms) give notice to the Parent that such
Bank is exercising its rights under this Clause 13.8 whereupon:
(i) all Commitments of such Bank shall immediately be cancelled;
and
(ii) all outstanding Advances of such Bank shall become due and
payable and shall be repaid by the relevant Borrowers
together with accrued interest and all other amounts payable
by the Borrowers hereunder within 5 days of the date of such
notice.
(c) For the purpose of this Clause 13.8, control and connected person
shall respectively be construed in accordance with Section 416 and
Section 839 of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
13.9 No Other Repayments
The Borrowers shall not repay all or any part of the Loan except at the
times and in the manner expressly provided for in this Agreement.
13.10 No Reborrowing of the Term Facilities
None of the Borrowers shall be entitled to reborrow any amount of the
Term Facility which is repaid.
14. TAXES
14.1 Tax Gross-up
All payments to be made by an Obligor to any Finance Party under the
Finance Documents shall be made free and clear of and without deduction
for or on account of tax unless such Obligor is required to make such a
payment subject to the deduction or withholding of tax, in which case
the sum payable by such Obligor (in respect of which such deduction or
withholding is required to be made) shall, subject to Clause 14.3
(Excluded Claims), be increased to the extent necessary to ensure that
such Finance Party receives a sum net of any deduction or withholding
equal to the sum which it would have received had no such deduction or
withholding been made or required to be made.
14.2 Tax Indemnity
Without prejudice to Clause 14.1 (Tax Gross up), but subject to Clause
14.3 (Excluded Claims), if any Finance Party is required to make any
payment of or on account of tax on or in relation to any sum received or
receivable under the Finance Documents (including any sum deemed for
purposes of tax to be received or receivable by such Finance Party
whether or not actually received or receivable) or if any liability in
respect of any such payment is asserted, imposed, levied or assessed
against any Finance Party, the Parent shall, upon demand of the Agent,
promptly indemnify the Finance Party which suffers a loss or liability
as a result against such payment or liability, together with any
interest, penalties, costs and expenses payable or incurred in
connection therewith, provided that this Clause 14.2 shall not apply to:
(a) any tax imposed on and calculated by reference to the net income
actually received or receivable by such Finance Party (but, for the
avoidance of doubt, not including any sum deemed for purposes of tax
to be received or receivable by such Finance Party but not actually
receivable) by the jurisdiction in which such Finance Party is
incorporated or resident for tax purposes; or
(b) any tax imposed on and calculated by reference to the net income of
the Facility Office of such Finance Party actually received or
receivable by such Finance Party (but, for the avoidance of doubt,
not including any sum deemed for purposes of tax to be received or,
receivable by such Finance Party but not actually receivable) by the
jurisdiction in which its Facility Office is located.
14.3 Excluded Claims
If any Bank is not or ceases to be a Qualifying Lender, no Obligor shall
be liable to pay to that Bank under Clause 14.1 (Tax Gross-up) or Clause
14.2 (Tax Indemnity) any amount in respect of taxes levied or imposed in
excess of the amount it would have been obliged to pay if that Bank had
been or had not ceased to be a Qualifying Lender provided that this
Clause 14.3 shall not apply (and each Obligor shall be obliged to comply
with its obligations under Clause 14.1 (Tax Gross-up) or, as the case
may be, Clause 14.2 (Tax Indemnity)) if:
(a) after the date hereof, there shall have been any introduction of,
change in, or change in the interpretation, administration or
application of, any law or regulation or order or governmental rule
or treaty or any published practice or published concession of any
applicable tax authority and as a result thereof such Bank ceased to
be a Qualifying Lender; or
(b) such Bank is not or ceases to be a Qualifying Lender as a result of
the actions of or omission to act by any Obligor; or
(c) the relevant Obligor would be required to make a deduction or
withholding in respect of tax irrespective of whether the Bank is or
is not a Qualifying Lender.
14.4 Double Taxation Relief
If, and to the extent that, the effect of Clause 14.1 (Tax Gross-up) or
Clause 14.2 (Tax Indemnity) can be mitigated by virtue of the provisions
of any applicable double tax convention entered into by an Obligor's
jurisdiction of incorporation or the jurisdiction through which an
Obligor is borrowing under this Agreement (whether by claim to repayment
of any taxes referred to in Clause 14.1 (Tax Gross up) or Clause 14.2
(Tax Indemnity) or otherwise) each Bank and the Agent agrees to co
operate with the relevant Obligor with a view to submitting any forms
required for the purpose of ensuring the application of such double tax
convention so far as relevant, provided that neither a Bank nor the
Agent shall be required pursuant to this Clause 14.4 to complete or
co-operate in completing any form which is not substantially similar to
any form in use at the date of this Agreement (for the purpose of`
claiming exemption or relief from or repayment of taxes envisaged under
the Finance Documents pursuant to a double taxation convention between
an Obligor's jurisdiction of incorporation or the jurisdiction through
which an Obligor is borrowing under this Agreement and such Bank's or
the Agent's jurisdiction of residence) to the extent that completing or
co operating in completing such form would result in a Bank or the Agent
being subject to greater obligations under this Clause 14.4 than those
imposed on it on the date hereof.
14.5 Banks' Tax Status Confirmation
Each Bank confirms in favour of the Agent and each Obligor (on the date
hereof or, in the case of a Bank which becomes a party hereto pursuant
to a transfer or assignment, on the date on which the relevant transfer
or assignment becomes effective) that it is a Qualifying Lender and each
Bank shall promptly notify the Agent and the Parent if there is any
change in its position from that set out above.
14.6 Claims by Banks
A Bank intending to make a claim pursuant to Clause 14.2 (Tax Indemnity)
shall notify the Agent of the event giving rise to the claim, whereupon
the Agent shall notify the Parent thereof.
15. TAX RECEIPTS
15.1 Notification of Requirement to Deduct Tax
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it under the Finance Documents (or
if thereafter there is any change in the rates at which or the manner in
which such deductions or withholdings are calculated), such Obligor
shall promptly notify the Agent.
15.2 Evidence of Payment of Tax
If an Obligor makes any payment under the Finance Documents in respect
of which it is required to make any deduction or withholding, it shall
pay the full amount required to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such payment
under applicable law and shall deliver to the Agent for each Bank,
within thirty days after it has made such payment to the applicable
authority, an original receipt (or a certified copy thereof) issued by
such authority evidencing the payment to such authority of all amounts
so required to be deducted or withheld in respect of that Bank's share
of such payment.
15.3 Tax Credit Payment
If an additional payment is made under Clause 14 (Taxes) by an Obligor
for the benefit of any Finance Party and such Finance Party, acting in
good faith in its sole discretion, determines that it has obtained (and
has derived full use and benefit from) a credit against, a relief or
remission for, or repayment of, any tax, then, if and to the extent that
such Finance Party, acting in good faith in its sole opinion, determines
that:
(a) such credit, relief, remission or repayment is in respect of or
calculated with reference to the additional payment made pursuant to
Clause 14 (Taxes); and
(b) its tax affairs for its tax year in respect of which such credit,
relief, remission or repayment was obtained have been finally
settled,
such Finance Party shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief,
remission or repayment, pay to such Obligor such amount as such Finance
Party shall, in its sole opinion acting in good faith, determine to be
the amount which will leave such Finance Party (after such payment) in
no worse after tax position than it would have been in had the
additional payment in question not been required to be made by such
Obligor.
15.4 Tax and Other Affairs
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever manner
it thinks fit, oblige any Finance Party to claim any credit, relief,
remission or repayment in respect of any payment under Clause 14 (Taxes)
in priority to any other credit, relief, remission or repayment
available to it nor oblige any Finance Party to disclose any information
relating to its tax or other affairs or any computations in respect
thereof. Each Finance Party shall have an absolute discretion as to
whether to claim any Tax Credit (and, if it does claim, the extent,
order and manner in which it does so) and whether any amount is due from
it under Clause 15.3 (Tax Credit Payment) (and if so, what amount and
when).
16. INCREASED COSTS
16.1 Increased Costs
If, by reason of (a) the introduction of or change in any law or
regulation or in its interpretation or administration or application
and/or (b) compliance with any request or requirement relating to the
maintenance of capital or any other request from or requirement of any
central bank or other fiscal, monetary or other authority:
(a) a Bank or any Holding Company of such Bank is unable to obtain the
rate of return on its capital which it would have been able to
obtain but for such Bank's entering into or assuming or maintaining
a commitment or performing its obligations under the Finance
Documents;
(b) a Bank or any Holding Company of such Bank incurs a cost as a result
of such Bank's entering into or assuming or maintaining a commitment
or performing its obligations under the Finance Documents;
(c) there is any increase in the cost to a Bank or any Holding Company
of such Bank of funding or maintaining such Bank's share of the
Advances or any Unpaid Sum; or
(d) there is a reduction of any amount due and payable under any Finance
Document,
then the Parent shall, from time to time on demand of the Agent,
promptly pay to the Agent for the account of that Bank amounts certified
by that Bank as necessary to indemnify that Bank or to enable that Bank
to indemnify its Holding Company from and against, as the case may be,
(i) such reduction in the rate of return of capital, (ii) such cost,
(iii) such increased cost, or (iv) such reduction of amount due.
16.2 Increased Costs Claims
A Bank intending to make a claim pursuant to Clause 16.1 (Increased
Costs) shall promptly after becoming aware of the circumstances giving
rise to such claim notify the Agent and the Parent and deliver to the
Parent a certificate specifying the amount of such claim and the basis
of computation thereof in reasonable detail.
16.3 Exclusions
Notwithstanding the foregoing provisions of this Clause 16, no Bank
shall be entitled to make any claim under this Clause 16 in respect of:
(a) any cost, increased cost or liability as referred to in Clause 16.1
(Increased Costs) to the extent the same is compensated by the
Mandatory Cost; or
(b) any cost, increased cost or liability compensated by Clause 14
(Taxes).
17. ILLEGALITY
If, at any time, it becomes unlawful for a Bank to make, fund or allow
to remain outstanding all or part of its share of the Advances, then
that Bank shall, promptly after becoming aware of the same, deliver to
the Parent through the Agent a notice to that effect and:
(a) such Bank shall not thereafter be obliged to participate in the
making of any Advances and the amount of its Available Term
Commitment and Available Revolving Commitment shall be immediately
reduced to zero; and
(b) if the Agent on behalf of such Bank so requires, the Parent shall
procure that each Borrower which has drawn an Advance shall on such
date as the Agent shall have specified (which shall be a Repayment
Date or the last day of the relevant Interest Period(s), as the case
maybe, or on such earlier date (if any) as such Bank shall certify
to be necessary to comply with the relevant law) repay such Bank's
share of any outstanding Advances together with accrued interest
thereon and all other amounts owing to such Bank under the Finance
Documents and any repayment of a Term Advance so made after the last
day of the Term Availability Period shall reduce rateably the
obligations under Clause 12 (Repayment of the Term Facility),
but, in each case, only to the extent to which such cancellation and/or
repayment is required to prevent or remedy such unlawfulness.
18. MITIGATION
If, in respect of any Bank, circumstances arise which would or would
upon the giving of notice result in:
(a) an increase in any sum payable to it or for its account pursuant to
Clause 14.1 (Tax Gross-up);
(b) a claim for indemnification pursuant to Clause 14.2 (Tax Indemnity)
or Clause 16.1 (Increased Costs); or
(c) the reduction of its Available Commitment to zero or any repayment
to be made, pursuant to Clause 17 (Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Obligors under any of the
Clauses referred to in paragraphs (a), (b) and (c) above, such Bank
shall promptly upon becoming aware of such circumstances notify the
Agent thereof and, in consultation with the Agent and the Parent and to
the extent that it can do so lawfully, and without prejudice to its own
position, take reasonable steps (including a change of location of its
Facility Office or the transfer of its rights, benefits and obligations
under the Finance Documents to another financial institution acceptable
to the Parent and willing to participate in the Facility) to mitigate
the effects of such circumstances, provided that such Bank shall be
under no obligation to take any such action if, in the reasonable
opinion of such Bank, to do so might have any adverse effect upon its
business, operations or financial condition (other than any minor costs
and expenses of an administrative nature). If as a result of taking any
such action to which the Parent has given written consent a Bank is no
longer a Qualifying Lender the provisions of Clause 14.3 (Excluded
Claims) shall not apply.
19. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 19 to each Finance Party.
19.1 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.
19.2 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.
19.3 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.
19.4 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.
19.5 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.
19.6 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 judgment 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.
19.7 No Deduction or Witholding
(a) Subject to paragraph (b) below, 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.
(b) Under the laws of its jurisdiction of incorporation in force at the
date hereof as modified by applicable Inland Revenue practice, the
Original Borrower will not be required to make any deduction or
withholding from any payment it may make under the Finance Documents
provided that, in the case of interest payments, the Banks are at
the date of receipt of any such payment Qualifying Lenders (provided
with regard to Banks falling within sub-paragraph (b) of the
definition of Qualifying Lender an appropriate direction has been
made).
19.8 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.
19.9 No default
(a) No Default or Event of Default is continuing or might reasonably be
expected to result from the making of any Advance.
(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 might have a Material Adverse Effect.
19.10 No misleading information
(a) Any factual information provided by the Parent 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) The financial projections contained in the Information Memorandum
have been prepared in good faith on the basis of recent historical
information and on the basis of the assumptions stated therein,
which assumptions were fair in the light of conditions existing at
the time of delivery of such forecasts, and represented, at the time
of delivery, the Parent's best estimate of its future performance.
(c) So far as the Parent 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.
(d) All material written information (other than the Information
Memorandum) supplied by any member of the Group is true, complete
and accurate in all material respects as at the date it was given
and is not misleading in any material respect.
19.11 Financial statements
(a) Its Original Financial Statements were prepared in accordance with
GAAP consistently applied and are complete and accurate in all
material respects.
(b) Its Original Financial Statements fairly represent 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 19.11 (pursuant to Clause
19.20 (Times on which representations are made)) the representations
will be made in respect of the latest consolidated financial
statements of each Obligor instead of the Original Financial
Statements.
19.12 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.
19.13 No proceedings pending or threatened
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which are likely to be adversely
determined and which, if so determined, would be reasonably likely to
have a Material Adverse Effect or purports 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.
19.14 No winding-up
No legal proceedings or other procedures or steps have been taken or, to
the Parent'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).
19.15 Material Adverse Change
There has been no material adverse change in the Parent'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 its Original Financial Statements.
19.16 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.
19.17 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 determined against that
member of the Group to have a Material Adverse Effect.
19.18 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.
19.19 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.
19.20 Times on which representations are made
(a) All the representations and warranties in this Clause 19 are made to
each Finance Party on the date of the Amendment Agreement and on the
Effective Date.
(b) The Repeated Representations are deemed to be made by each Obligor
to each Finance Party on the date of each Notice of Drawdown and on
the first day of each Interest Period.
(c) The Repeated Representations and each of the representations and
warranties set out in Clause 19.5 (Validity and admissibility in
evidence), Clause 19.9 (No default), paragraph (b) of Clause 19.10
(No misleading information) (in respect only of information given by
it) and Clause 19.14 (No winding-up) are deemed to be made by each
Additional Borrower and each Additional Guarantor to each Finance
Party on the day on which it becomes an Additional Borrower or an
Additional Guarantor, as the case may be.
(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.
20. FINANCIAL INFORMATION
The undertakings in this Clause 20 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.
20.1 Financial statements
(a) The Parent shall supply to the Agent:
(i) as soon as the same become available, but in any event
within 180 days after the end of each of the Obligor's
(other than RMC Group Limited) respective financial years:
(A) the Parent's audited consolidated and unconsolidated
financial statements for that financial year; and
(B) each other Obligor's respective audited consolidated
(to the extent available and other than in respect of
RMC Group Limited) and unconsolidated financial
statements for that financial year; and
(ii) as soon as the same become available, but in any event
within 90 days after the end of each of the first three
quarters of each of its financial years its unaudited
consolidated financial statements for that period.
(b) The Original Borrower shall supply to the Agent:
(i) as soon as the same become available, but in any event
within 180 days after the end of each of its financial
years, the audited consolidated financial statements of the
RMC Group for such financial year; and
(ii) as soon as the same become available, but in any event
within 120 days after the end of the first half of each of
its financial years (beginning with the financial half year
ending on 30 June 2005), the unaudited consolidated
financial statements of the RMC Group for such period.
20.2 Compliance Certificate
(a) The Parent shall supply to the Agent, with each set of consolidated
financial statements delivered pursuant to paragraphs (a)(i)(A) and
(a)(ii) of Clause 20.1 (Financial statements), a Compliance
Certificate setting out (in reasonable detail) computations as to
compliance with Clause 21.2 (Financial Condition of the Group).
(b) The Original Borrower shall supply to the Agent, with each set of
consolidated financial statements delivered pursuant to Clause
20.1(b) (Financial statements), a Compliance Certificate setting out
(in reasonable detail) computations as to compliance with Clause
21.1 (Financial Condition of the RMC Group) and the calculation of
the Margin as at the date as at which those financial statements
were drawn up.
(c) Each Compliance Certificate delivered under paragraph (a) of this
Clause 20.2 shall be signed by an Authorised Signatory of the Parent
and, if required to be delivered with the consolidated financial
statements delivered pursuant to paragraph (a)(i) of Clause 20.1
(Financial statements), by the Parent's auditors. Each Compliance
Certificate delivered under paragraph (b) of this Clause 20.2 shall
be signed by the Original Borrower's auditors and a director (in the
case of a Compliance Certificate delivered with its financial
statements delivered pursuant to paragraph (b)(i) of Clause 20.1
(Financial statements) or by a director of the Original Borrower (in
the case of a Compliance Certificate delivered with its annual
financial statements delivered pursuant to paragraph (b)(ii) of
Clause 20.1 (Financial statements).
20.3 Requirements as to financial statements
(a) Each set of financial statements delivered by the Parent pursuant to
Clause 20.1 (Financial statements) shall be certified by an
Authorised Signatory of the relevant company as fairly representing
its financial condition as at the date as at which those financial
statements were drawn up.
(b) The Parent shall procure that each set of financial statements
delivered pursuant to Clause 20.1 (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 20.3, its auditors (or, if appropriate, the auditors
of the 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 Banks to
determine whether Clause 21 (Financial condition) 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 Parent adopts International Accounting Standards or, subject
to paragraph (b) above, there are changes to GAAP, or the accounting
practices or reference periods, the Parent and the Agent shall, at
the Parent's request, negotiate in good faith with a view to
agreeing such amendments to the financial covenants in Clause 21.2
(Financial Condition of the Group) 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
Banks protection equivalent to that which would have been enjoyed by
them had the Parent not adopted International Accounting Standards
or there had 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 Parent subject to the consent of an
Instructing Group. If no such agreement is reached within 90 days of
the Parent's request, the Parent will remain subject to the
obligation to deliver the information specified in paragraph (b) of
this Clause 20.3.
(d) If the Original Borrower adopts International Accounting Standards
or, subject to paragraph (b) above, there are changes to GAAP, or
the accounting practices or reference periods, the Original Borrower
and the Agent shall, at the Original Borrower's request, negotiate
in good faith with a view to agreeing such amendments to the
financial covenants in Clause 21.1 (Financial Condition of the RMC
Group) 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 RMC Group's financial condition
grant to the Banks protection equivalent to that which would have
been enjoyed by them had the Original Borrower not adopted
International Accounting Standards or there had 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 Original
Borrower subject to the consent of an Instructing Group. If no such
agreement is reached within 90 days of the Original Borrower's
request, the Original Borrower will remain subject to the obligation
to deliver the information specified in paragraph (b) of this Clause
20.3.
20.4 Information: miscellaneous
The Parent shall supply to the Agent:
(a) all documents dispatched by the Parent 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 Parent'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 Parent, are not spurious or vexatious, and which might, if
adversely determined, have a Material Adverse Effect;
(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 (including, but not limited to, information on Ratings, if
such credit rating has not been publicly announced) 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 provided that the Parent shall use reasonable
efforts to be released from any such confidentiality agreement; and
(d) promptly upon becoming aware of them, the details of any
Environmental Claim which is current, threatened or pending against
any member of the Group which is referred to in Clause 22.12
(Environmental claims) which are not spurious or vexatious, which
are likely to be adversely determined against any member of the
Group and which could reasonably be expected, if adversely
determined, to have a Material Adverse Effect;
20.5 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 Parent 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).
20.6 "Know your client" checks
(a) Each Obligor shall promptly upon the request of the Agent or any
Bank and each Bank 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 Bank) or any Bank (for itself or on behalf of any
prospective new Bank) in order for the Agent, such Bank or any
prospective new Bank 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.
(b) The Parent shall, by not less than five Business Days' written
notice to the Agent, notify the Agent (which shall promptly notify
the Banks) of its intention to request that one of its Subsidiaries
becomes an Additional Obligor pursuant to Clause 35 (Changes to the
Obligors).
(c) Following the giving of any notice pursuant to paragraph (b) above,
the Parent shall promptly upon the request of the Agent or any Bank
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 Bank) or any Bank (for itself or on behalf of any
prospective new Bank) in order for the Agent, such Bank or any
prospective new Bank 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.
20.7 Notarisations
Each Obligor shall notify the Agent of any Notarisations referred to in
paragraph (a)(iv) of Clause 22.5 (Notarisation) promptly upon such
Notarisations taking place.
21. FINANCIAL CONDITION
21.1 Financial condition of the RMC Group
The Parent shall ensure that the financial condition of the RMC Group
shall be such that RMC Consolidated Net Worth shall not be less than
(pound)1,000,000,000.
21.2 Financial Condition of the Group
The Parent 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 3:1.
21.3 Financial definitions
In the definition of "Margin" and this Clause 21 (Financial condition)
the following terms have the following meanings:
"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 Parent 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 Parent by CEMEX S.A. de C.V. or by any of its Subsidiaries not
being a Subsidiary of the Parent made after 1 January 2004.
"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 such 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). 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 plus (f) any charges analogous to the foregoing
relating to Off-Balance-Sheet Transactions for such period, all
determined on a consolidated basis in accordance with GAAP.
"Guarantees" means any guarantee or indemnity of Financial Indebtedness
of another person (in the case of the latter 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.
"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 license) 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 at such time less (b) the aggregate amount of the following
items held by the Parent 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.
"Off-Balance-Sheet Transactions" means any present or future financing
transaction not reflected as indebtedness on the consolidated balance
sheet of the Parent, but being structured in a way that may result in
payment obligations by any Group member, excluding any financing
transaction in the form of:
(a) interest rate and currency exchange rate hedging agreements to hedge
risks arising in the normal course of business;
(b) transactions containing potential payments by any Group member (e.g.
via a put-option agreement or similar structures) under which
payments are incapable of being triggered until three days after the
Revolving Termination Date in relation to the Revolving Facility; or
(c) any supply arrangement or equipment lease in respect of energy or
raw material sourcing containing contingent obligations to directly
or indirectly purchase (including through the purchase of shares or
other equity participation) the underlying operations or assets up
to an aggregate maximum of US$100,000,000.
"Relevant Period" means each period of twelve months ending on the last
day of each consecutive quarter of the Parent's financial year and each
period of twelve months ending on the last day of the Parent's financial
year.
"RMC Adjusted EBITDA" means, in respect of any RMC Relevant Period, RMC
EBITDA for that RMC Relevant Period but adjusted to include the earnings
before interest, tax, depreciation and amortisation (calculated by
reference to management accounts) of a member of the RMC Group or
business acquired during that RMC Relevant Period, including for any
part of that RMC Relevant Period when it was not a member of the RMC
Group and/or the business acquired was not owned by any member of the
RMC Group.
"RMC Cemex Capital Contributions" means contributions in cash to the
capital of RMC Group Limited by CEMEX S.A. de C.V. or by any of its
Subsidiaries not being a Subsidiary of RMC Group Limited made after the
Effective Date and any increase in the amount of RMC Subordinated Debt
after 1 January 2006.
"RMC Consolidated Net Worth" means the consolidated total capital and
reserves of the RMC Group as determined from the latest financial
statements of the RMC Group delivered pursuant to Clause 20.1(b),
currently under the heading Total Capital and Reserves as adjusted by:
(a) adding back any diminution due to the writing off or amortisation of
acquisition goodwill or the debiting of acquisition goodwill to any
reserve;
(b) deducting any amount attributable to any intangible asset (other
than goodwill) included as an asset in the balance sheet; and
(c) including any RMC Subordinated Debt granted to any member of the RMC
Group.
"RMC Consolidated Net Interest Payable" means, in respect of any RMC
Relevant Period, the net interest expense of the RMC Group as determined
from the most recent audited and/or, as the case may be, interim
consolidated financial statements currently under the heading Interest
Payable (NET) for that RMC Relevant Period but excluding amounts in
respect of interests in joint ventures and associated undertakings and
excluding any amount classified as interest in accordance with FRS 12 as
referred to in the notes to the relevant financial statements under the
heading unwinding of discount.
"RMC Consolidated Total Net Borrowings" means, at any time and without
double counting, the aggregate amount of all obligations of the members
of the RMC Group for or in respect of RMC Indebtedness for Borrowed
Money less (i) the aggregate amount of the following items held by the
Original Borrower and its Subsidiaries at such time: cash in hand,
marketable securities, investments in money market funds, banker's
acceptances, short term deposits and other liquid investments and (ii)
any RMC Subordinated Debt.
"RMC EBITDA" means, in respect of any RMC Relevant Period, the
consolidated profits of the RMC Group (for the avoidance of doubt but
without duplication, calculated before any reduction on account of RMC
Consolidated Net Interest Payable, without reference to profit derived
from interests in joint ventures and associated undertakings and
including any amount classified as interest in accordance with FRS 12 as
referred to in the notes to the relevant financial statements under the
heading "unwinding of discount", currently under the heading Interest
Payable (NET)) as shown in the most recent audited and/or, as the case
may be, interim consolidated financial statements currently under the
heading Operating Profit (after adding back any amounts in respect of
the writing off or the amortisation of goodwill and other intangible
assets and depreciation and impairment of fixed assets) for the Relevant
Period before the deduction of RMC Consolidated Net Interest Payable and
corporation tax on the overall net income of the RMC Group payable in
respect of the RMC Relevant Period plus an amount equal to the amount of
RMC Cemex Capital Contributions made during such period immediately
preceding the date on which it is to be calculated (up to an amount
equal to the amount of RMC Royalty Expenses made in such period).
"RMC Indebtedness for Borrowed Money" means the principal amount of any
indebtedness (other than indebtedness incurred by one member of the RMC
Group in favour of another member of the RMC Group) for or in respect
of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit facility
(excluding any bills of exchange or promissory notes owned by the
relevant person and excluding any ▇▇▇▇ or note drawn, accepted or
issued by that person in the ordinary course of trading and which is
not refinancing another ▇▇▇▇ or note relating to the same underlying
transaction);
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) any amount raised pursuant to any issue of shares which are
expressed to be redeemable prior to the Revolving Termination Date;
(e) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with generally accepted
accounting principles in the relevant jurisdiction, be treated as a
finance or capital lease;
(f) the amount of any liability in respect of any advance or deferred
purchase agreement if the primary reason for entering into such
agreement is to raise finance;
(g) receivables sold or discounted (other than on a non-recourse basis)
to the extent of any recourse to the vendor (it being understood
that Permitted Securitisations shall be deemed not to be on a
recourse basis);
(h) any agreement or option to re acquire an asset if the primary reason
for entering into such agreement or option is to raise finance;
(i) any amount raised under any other transaction (including any forward
sale or purchase or hedging or swap agreement) having the commercial
effect of a borrowing; and
(j) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (a) to (i) above.
"RMC Relevant Period" means each period of twelve months ending on the
last day of the Original Borrower's financial year and each period of
twelve months ending on the last day of the first half of the Original
Borrower's financial year.
"RMC Royalty Expenses" means expenses incurred by the Original Borrower
or any of its Subsidiaries to CEMEX S.A. de C.V. or any of its
Subsidiaries not being a Subsidiary of the Original Borrower as (a)
consideration for the granting to RMC Group Limited 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 S.A. de C.V. or any
of its Subsidiaries not being a Subsidiary of the Original Borrower; 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 RMC EBITDA.
"RMC Subordinated Debt" means debt granted by CEMEX S.A. de C.V. (a
company registered in Mexico) or any of its Subsidiaries not being a
member of the RMC Group to the Original Borrower 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 or
other like event of the Original Borrower) until the Agent has confirmed
in writing that all amounts outstanding hereunder have been paid in
full.
"Rolling Basis" means the calculation of a ratio or an amount made at
the end of a financial quarter in respect of that financial quarter and
the three immediately preceding financial quarters.
"Royalty Expenses" means expenses incurred by the Parent or any of its
Subsidiaries to CEMEX S.A. de C.V. or any of its Subsidiaries not being
a Subsidiary of the Parent as (a) consideration for the granting to the
Parent 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 S.A. de C.V. or any of its Subsidiaries not
being a Subsidiary of the Parent; 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 by CEMEX S.A. de C.V. (a company
registered in Mexico) or any of its Subsidiaries not being a member of
the Group to the Parent 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 Parent) until the Agent has confirmed in writing that all amounts
outstanding hereunder have been paid in full.
"Total Borrowings" means without duplication, in respect of any person
all Guarantees granted by such person, plus all Off-Balance-Sheet
Transactions entered into by such person, plus all such person's
Financial Indebtedness, but excluding any Subordinated Debt.
21.4 Financial testing
(a) The financial covenants set out in Clause 21.2 (Financial Condition
of the Group) shall be tested quarterly by reference to each of the
Parent's consolidated financial statements delivered pursuant to
and/or each Compliance Certificate delivered with respect to any
such consolidated financial statements pursuant to Clause 20.1(a)
(Financial statements) and Clause 20.2(a) (Compliance Certificate).
(b) The financial covenants set out in Clause 21.1 (Financial Condition
of the RMC Group) shall be tested and the Margin shall be calculated
semi-annually by reference to each of the Original Borrower's
financial statements delivered pursuant to and/or each Compliance
Certificate delivered with respect to any such consolidated
financial statements pursuant to Clause 20.1(b) (Financial
Statements) and Clause 20.2(b) (Compliance Certificate).
21.5 Accounting terms
All accounting expressions which are not otherwise defined herein shall
have the meaning ascribed thereto in GAAP.
22. COVENANTS
The undertakings in this Clause 22 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.
22.1 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.
22.2 Preservation of corporate existence
Subject to Clause 22.8 (Merger), each Obligor shall (and the Parent
shall ensure that each of its Material Subsidiaries will), preserve and
maintain its corporate existence and rights.
22.3 Preservation of properties
Each Obligor shall (and the Parent shall ensure that each of its
Material Subsidiaries will) maintain and preserve all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
22.4 Compliance with laws and regulations
(a) Each Obligor shall (and shall procure that each of its Subsidiaries
will) 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 Parent shall (and shall procure that each of its Subsidiaries
will) 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.
22.5 Notarisation
(a) Subject to paragraph (b) of this Clause 22.5, at any time when
notarised Spanish Public Documents have priority status on
insolvency of a Spanish company under Spanish law, the Parent shall
not (and shall procure that none of its Subsidiaries will) 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 12 (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 Anonimas);
(iii) Notarisations with the prior written consent of an
Instructing Group;
(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
(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 22.5 shall not apply if the Parent,
concurrently with any such Notarisation (not being a Permitted
Notarisation) referred to in paragraph (a) of this Clause 22.5 and
at its own cost and expense, causes this Agreement to be the subject
of a Notarisation.
22.6 Negative pledge
The Parent shall not and shall not permit any of 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 material 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;
(d) any 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;
(f) any Security on property acquired by the Parent 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 payment of the purchase price,
or to secure indebtedness incurred or assumed to pay all or any part
of the purchase price, of property acquired by the Parent 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 51% or more of the voting stock of such
corporation, the stock and assets of any acquired Subsidiary or
acquiring Subsidiary by which the acquired Subsidiary will 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 Parent'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 the proceeds from the deposit or transfer of such
shares into such trust, corporation or entity and from any transfer
of or distributions in respect of the Parent's or any Subsidiary's
interest in such trust, corporation or entity are applied as
provided under Clause 22.7 (Disposals) and provided further that
such Security may not secure Financial Indebtedness of the Company
or any Subsidiary unless otherwise permitted under this Clause 22.6
and that the economic and voting rights in such capital stock is
maintained by the Parent in its Subsidiaries;
(i) any Security permitted by the Agent, acting on the instructions of
an Instructing Group;
(j) any securitisation of receivables notwithstanding that it is made at
discount from the amount due on such receivables and provided that
it is made on a non recourse basis or that recourse is directly or
indirectly limited to collection of the receivables plus related
interest and financial and collection costs and expenses;
(k) in addition to the Security permitted by the foregoing paragraphs
(a) to (j), Security securing indebtedness of the Parent and its
Subsidiaries (taken as a whole) not in excess of an amount equal to
5% 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 22.6, "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.
22.7 Disposals
(a) Subject to paragraph (b) of this Clause 22.7, the Parent shall not
(and the Parent shall ensure that none of its Subsidiaries will),
without the prior written consent of the Agent (acting on the
instructions of an Instructing Group), 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 the
latest consolidated financial statements of the Parent, delivered
pursuant to paragraph (a)(i)(A) of Clause 20.1 (Financial
statements), unless (i) full value for such assets is received by
the Parent or its Subsidiaries; (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 Parent or its
Subsidiaries in the business of the Group; and (iii) neither such
sale, lease, transfer or other disposal nor such reinvestment
directly results in a downgrade from the then current Ratings of the
Parent.
(b) Paragraph (a) of this Clause 22.7 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 securitisation of receivables
notwithstanding that it is made at discount from the amount
due on such receivables and provided that it is made on a
non-recourse basis or that recourse is directly or
indirectly limited to collection of the receivables plus
related interest and financial and collection costs and
expenses;
(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:
(A) 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 "Relevant Transferee")
becomes a Guarantor; or
(B) 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 Relevant
Transferee shall be deemed to be a Material Subsidiary;
(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; or
(v) in respect of which the proceeds are applied pursuant to any
prepayment requirement included as at the date hereof in
existing loan agreements of any Subsidiary in relation to
the use of proceeds received from the disposal of any
assets.
22.8 Merger
(a) Subject to paragraphs (b) and (c) of this Clause 22.8, unless it has
obtained the prior written approval of the Agent (acting on the
instructions of an Instructing Group), no Obligor shall (and the
Parent shall ensure that none of its Subsidiaries will) enter into
any amalgamation, demerger, merger or other corporate reconstruction
(a "Reconstruction"), other than (i) a Reconstruction relating only
to the Parent's Subsidiaries inter se; (ii) a Reconstruction between
the Parent and any of its Subsidiaries; (iii) a solvent
reorganisation or liquidation of any of the Subsidiaries not being
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 Banks 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 22.8, 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) In paragraphs (a) and (b) of this Clause 22.8, the then existing
Ratings of the Parent shall not 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
Parent, and the resulting entity, if it is not an Obligor, shall
assume the obligations of the Obligor the subject of the merger.
22.9 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 and there shall be no cessation of business in relation to
any of the Obligors (save (except in the case of the Parent which
shall in no event cease or substantially change its business) unless
another Obligor continues to operate any such business).
(b) The Parent shall procure that no substantial change is made to the
general nature of the business of any of its Material Subsidiaries
(other than a Guarantor) from that carried on at the date of this
Agreement and that there shall be no cessation of such business.
22.10 Insurance
The Obligors shall (and the Parent shall ensure that each of its
Material Subsidiaries (other than the Obligors) will) 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.
22.11 Environmental Compliance
The Parent shall (and the parent shall ensure that each of its
Subsidiaries will) 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.
22.12 Environmental Claims
The Parent 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
Parent's knowledge and belief) is threatened against any member of
the Group which is likely to be determined adversely to the member
of the Group; 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,
where the claim would be reasonably likely, if determined against that
member of the Group, to have a Material Adverse Effect.
22.13 Transactions with Affiliates
Each Obligor shall (and the Parent shall ensure that its Subsidiaries
will) ensure that any transactions with 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 not an affiliate.
22.14 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.
22.15 Payment restrictions affecting Subsidiaries
The Parent shall not enter into or suffer to exist, or permit any of 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 (other than in relation to the Asia Fund as
at the date hereof) entered into by a person prior to such person
becoming a Subsidiary, in which case the Parent shall use its
reasonable endeavours to remove such limitations. If however, such
limitations are reasonably likely to affect the ability of a
Borrower or the Parent to satisfy their payment obligations under
this Agreement, the Parent 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 22.15.
22.16 Indebtedness of Obligors
None of the Obligors (other than the Parent and the Original Borrower)
shall incur or permit to exist any Financial Indebtedness other than:
(a) Financial Indebtedness in respect of its taxes or costs, incurred
pursuant to legal requirements;
(b) Financial Indebtedness owed to another member of the Group;
(c) Financial Indebtedness of another member of the Group guaranteed by
a Guarantor;
(d) Financial Indebtedness in relation to the Loan Notes;
(e) Financial Indebtedness pursuant to the Finance Documents; and
(f) Financial Indebtedness not falling within paragraphs (a) to (d)
above, in an aggregate amount not exceeding EUR3,000,000 (or the
equivalent thereof in any other currency).
22.17 Notification of adverse change in Ratings
The Parent shall promptly notify the Agent of any change in its Ratings
or Outlook.
23. EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 23 is an
Event of Default.
23.1 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.
23.2 Financial Covenants
Any requirement of Clause 21 (Financial Condition) is not satisfied.
23.3 Other obligations
(a) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 23.1 (Non-payment)
and Clause 21 (Financial condition)).
(b) No Event of Default under paragraph (a) of this Clause 23.3 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 Parent or the Parent becoming aware of the failure to
comply whichever is the earlier.
23.4 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.
23.5 Cross acceleration
(a) Any Financial Indebtedness of any Obligor or member of the Group is
not paid when due nor within any originally applicable grace period.
(b) Any Financial Indebtedness of any Obligor or member of the Group 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 23.5 if the
aggregate amount of Financial Indebtedness falling within paragraphs
(a) and (b) of this Clause 23.5 above is less than US$50,000,000 (or
its equivalent in any other currency or currencies).
(d) Any event or circumstance described as an "Event of Default" occurs
pursuant to clause 24.3 (Other Obligations) of the Cemex Existing
Facility Agreement as a result of a breach of clause 23.7
(Disposals) or clause 23.20 (Indebtedness of Guarantors) under the
Cemex Existing Facility Agreement provided that, at such time, the
Original Borrower is an obligor under the Cemex Existing Facility
Agreement.
23.6 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.
(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.
23.7 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 not being
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 not being 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 which is
frivolous or vexatious and is discharged, stayed or dismissed within 60
days of commencement.
23.8 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.
23.9 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 23.9
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$50,000,000
(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.
23.10 Failure to comply with judgment
Any Obligor or any Material Subsidiary fails to comply with or pay any
sum due from it under any judgment or any order made or given by any
court of competent jurisdiction save unless payment of any such sum is
suspended pending an appeal.
23.11 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.
23.12 Repudiation
An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
23.13 Change of Control
If CEMEX, S.A. de C.V. ceases to:
(a) be entitled to (whether by way of ownership of shares (directly or
indirectly), proxy, contract, agency or otherwise):
(i) 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 Parent;
(ii) appoint or remove all, or the majority, of the directors or
other equivalent officers of the Parent;
(iii) give directions with respect to the operating and financial
policies of the Parent which the directors or other
equivalent officers of the Parent are obliged to comply
with; or
(b) hold at least 51 per cent. of the common shares in the Parent.
23.14 Material adverse change
Any material adverse change arises in the financial condition of the
Group taken as a whole which the Agent (acting on the instructions of an
Instructing Group) reasonably determines would result in the failure by
any Obligor to perform its payment obligations under any of the Finance
Documents.
23.15 Acceleration
On and at any time after the occurrence of an Event of Default the Agent
may, while such Event of Default is continuing and shall if so directed
by an Instructing Group, by notice to the Parent:
(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
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent acting on the instructions of an Instructing Group.
23.16 Clean Up Period
If during the Clean-Up Period a matter or circumstance exists in respect
of the Original Borrower and/or any Subsidiary of the Original Borrower
which would constitute a breach under the Finance Documents including
(i) a breach of any representation or warranty made in Clause 19
(Representations), or (ii) a breach of any covenant set out in Clause 22
(Covenants) or (iii) a Default, such matter or circumstance will not
constitute 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 Parent becoming aware of the same), unless
such matter or circumstance (1) could reasonably be expected to have a
Material Adverse Effect (assuming for this purpose that the definition
thereof is deemed to be adjusted such that sub paragraph (c) thereof
refers solely to payment obligations and financial covenant obligations)
or (2) has been procured by, or approved by, the Parent.
24. GUARANTEE AND INDEMNITY
24.1 Guarantee and Indemnity
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party the due and punctual observance and
performance of all the terms, conditions and covenants on the part
of each Borrower contained in the Finance Documents and agrees to
pay from time to time on demand any and every sum or sums of money
which each Borrower is at any time liable to pay to any Finance
Party under or pursuant to the Finance Documents and which has
become due and payable but has not been paid at the time such demand
is made; and
(b) agrees as primary obligation to indemnify each Finance Party from
time to time on demand from and against any loss incurred by any
Finance Party as a result of any of the obligations of each Borrower
under or pursuant to the Finance Documents being or becoming void,
voidable, unenforceable or ineffective as against such Borrower for
any reason whatsoever, whether or not known to any Finance Party or
any other person, the amount of such loss being the amount which the
person or persons suffering it would otherwise have been entitled to
recover from such Borrower.
24.2 Additional Security
The obligations of each Guarantor herein contained, shall be in addition
to and independent of every other security which any Finance Party may
at any time hold in respect of any of any Obligor's obligations under
the Finance Documents.
24.3 Continuing Obligations
The obligations of each Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied
by any intermediate payment or satisfaction of all or any of the
obligations of the Borrowers under the Finance Documents and shall
continue in full force and effect until final payment in full of all
amounts owing by any Borrower under the Finance Documents and total
satisfaction of all the Borrowers' actual and contingent obligations
under the Finance Documents.
24.4 Obligations not Discharged
Neither the obligations of each Guarantor herein contained nor the
rights, powers and remedies conferred in respect of any Guarantor upon
any Finance Party by the Finance Documents or by law shall be
discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution administration or re-organisation of any
Borrower or any other person or any change in its status, function,
control or ownership;
(b) any of the obligations of any Borrower or any other person under the
Finance Documents or under any other security taken in respect of
any of its obligations under the Finance Documents being or becoming
illegal, invalid, unenforceable or ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted to
any Borrower or any other person in respect of its obligations under
the Finance Documents or under any such other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of any Borrower or any other person, under the Finance
Documents or under any such other security;
(e) any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of any Borrower's
obligations under the Finance Documents;
(f) any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security taken
in respect of any Borrower's obligations under the Finance
Documents; or
(g) any other act, event or omission which, but for this Clause 24.4,
might operate to discharge, impair or otherwise affect any of the
obligations of any Guarantor herein contained or any of the rights,
powers or remedies conferred upon any of the Finance Parties by the
Finance Documents or by law.
24.5 Settlement Conditional
Any settlement or discharge, between an Obligor and any of the Finance
Parties, shall be conditional upon no security or payment to any Finance
Party by an Obligor or any other person on behalf of an Obligor being
avoided or reduced by virtue of any laws relating to bankruptcy,
insolvency, liquidation or similar laws of general application and, if
any such security or payment is so avoided or reduced, each Finance
Party shall be entitled to recover the value or amount of such security
or payment from such Obligor subsequently as if such settlement or
discharge had not occurred.
24.6 Exercise of Rights
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of any Guarantor by
the Finance Documents or by law:
(a) to make any demand of any Borrower other than in accordance with
Clause 24.1 (Guarantee and Indemnity);
(b) to take any action or obtain judgement in any court against any
Borrower;
(c) to make or file any claim or proof in a winding-up or dissolution of
any Borrower; or
(d) to enforce or seek to enforce any other security taken in respect of
any of the obligations of any Borrower under the Finance Documents.
24.7 Deferral of Parent's Rights
Each Guarantor agrees that, so long as any amounts are or may be owed by
a Borrower under the Finance Documents or a Borrower is under any actual
or contingent obligations under the Finance Documents, it shall not
exercise any rights which it may at any time have by reason of
performance by it of its obligations under the Finance Documents:
(a) to be indemnified by a Borrower; and/or
(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 security taken pursuant to, or in
connection with, the Finance Documents by all or any of the Finance
Parties.
24.8 Suspense Accounts
All moneys received, recovered or realised by a Bank by virtue of Clause
24.1 (Guarantee and Indemnity) may, in that Bank's discretion, be
credited to an interest bearing suspense or impersonal account and may
be held in such account for so long as such Bank thinks fit pending the
application from time to time (as such Bank may think fit) of such
moneys in or towards the payment and discharge of any amounts owing by
an Obligor to such Bank under the Finance Documents.
25. COMMITMENT COMMISSION AND FEES
25.1 Commitment Commission on the Term Facility
The Original Borrower shall pay to the Agent for account of each Bank a
commitment commission on the amount of such Bank's Available Term
Commitment from day to day during the period beginning on the date
hereof and ending on the last day of the Term Availability Period, such
commitment commission to be calculated at the rate of 45 per cent. of
the Margin from time to time at such time and payable in arrear on the
last day of each successive period of three months which ends during the
Term Availability Period and on the last day of the Term Availability
Period.
25.2 Commitment Commission on the Revolving Facility
The Original Borrower shall pay to the Agent for account of each Bank a
commitment commission on the amount of such Bank's Available Revolving
Commitment from day to day during the period beginning on the date
hereof and ending on the Revolving Termination Date, such commitment
commission to be calculated at the rate of 45 per cent. of the Margin
from time to time at such time and payable in arrear on the last day of
each successive period of three months which ends during such period and
on the Revolving Termination Date.
25.3 Agency Fee
The Original Borrower shall pay to the Agent for its own account the
agency fees specified in the letter dated 18 October 2002 from the Agent
to RMC Group Limited at the times, and in the amounts, specified in such
letter.
25.4 Other fees
The Original Borrower shall pay to the Agent for the account of the
Banks, the fees specified in a letter dated on or around 16 March 2005.
26. COSTS AND EXPENSES
26.1 Transaction Expenses
The Original Borrower shall, from time to time on demand of the Agent,
reimburse each of the Agent and the Mandated Lead Arrangers for all
reasonable costs and expenses (including legal fees) together with any
VAT thereon incurred by it in connection with the negotiation,
preparation, underwriting, syndication, documentation and execution of
the Finance Documents, any other document referred to in the Finance
Documents and the completion of the transactions therein contemplated.
26.2 Preservation and Enforcement of Rights
The Original Borrower shall, from time to time on demand of the Agent,
reimburse the Finance Parties for all costs and expenses (including
legal fees) on a full indemnity basis together with any VAT thereon
incurred in or in connection with the preservation and/or enforcement of
any of the rights of the Finance Parties under the Finance Documents and
any document referred to in the Finance Documents (including, without
limitation, any costs and expenses relating to any investigation as to
whether or not an Event of Default might have occurred or is likely to
occur or any steps necessary or desirable in connection with any
proposal for remedying or otherwise resolving an Event of Default or
Default).
26.3 Stamp Taxes
The Parent shall pay all stamp, registration and other taxes to which
the Finance Documents or any Judgement given in connection therewith is
or, at any time may be subject (other than any document effecting an
assignment as contemplated by Clause 34.3 (Assignments and Transfers by
Banks) to Clause 34.5 (Transfers by Banks)) and shall, from time to time
on demand of the Agent, indemnify the Finance Parties against any
liabilities, costs, claims and expenses resulting from any failure to
pay or any delay in paying any such tax.
26.4 Amendment Costs
If an Obligor requests any amendment, waiver or consent then the
relevant Obligor shall, within five Business Days of demand by the
Agent, reimburse the Finance Parties for all costs and expenses
(including legal fees) together with any VAT thereon reasonably incurred
by such person in responding to or complying with such request.
26.5 Banks' Liabilities for Costs
If the Original Borrower fails to perform any of its obligations under
this Clause 26, each Bank shall, in its Proportion, indemnify each of
the Agent and the Mandated Lead Arrangers against any loss incurred by
any of them as a result of such failure.
27. DEFAULT INTEREST AND BREAK COSTS
27.1 Default Interest Periods
If any sum due and payable by an Obligor hereunder is not paid on the
due date therefor in accordance with Clause 30 (Payments) or if any sum
due and payable by an Obligor under any judgement of any court in
connection herewith is not paid on the date of such judgement, the
period beginning on such due date or, as the case may be, the date of
such judgement and ending on the date upon which the obligation of such
Obligor to pay such sum is discharged shall be divided into successive
periods, each of which (other than the first) shall start on the last
day of the preceding such period and the duration of each of which shall
(except as otherwise provided in this Clause 27) be selected by the
Agent acting reasonably.
27.2 Default Interest
An Unpaid Sum shall bear interest during each Interest Period in respect
thereof at the rate per annum which is one per cent. per annum above the
percentage rate which would apply if such Unpaid Sum had been an Advance
in the amount and currency of such Unpaid Sum and for the same Interest
Period, provided that if such Unpaid Sum relates to an Advance which
became due and payable on a day other than the last day of an Interest
Period or Term relating thereto:
(a) the first Interest Period applicable to such Unpaid Sum shall be of
a duration equal to the unexpired portion of the current Interest
Period or Term relating to that Advance; and
(b) the percentage rate of interest applicable thereto from time to time
during such period shall be that which exceeds by one per cent. the
rate which would have been applicable to it had it not so fallen
due, save that the Margin shall be, or be deemed to be, the highest
rate specified in the definition thereof.
27.3 Payment of Default Interest
Any interest which shall have accrued under Clause 27.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and shall
be paid by the Obligor owing such Unpaid Sum on the last day of each
Interest Period in respect thereof or on such other dates as the Agent
may specify (acting reasonably) by notice to such Obligor.
27.4 Break Costs
If any Bank or the Agent on its behalf receives or recovers all or any
part of such Bank's share of an Advance or Unpaid Sum otherwise than on
the last day of an Interest Period or Term relating thereto, the
Original Borrower shall pay to the Agent on demand for account of such
Bank an amount equal to the amount (if any) by which (a) the additional
interest which would have been payable on the amount so received or
recovered had it been received or recovered on the last day of that
Interest Period or Term exceeds (b) the amount of interest which in the
reasonable opinion of the Agent would have been payable to the Agent on
the last day of that Interest Period or Term in respect of a deposit in
the currency of the amount so received or recovered equal to the amount
so received or recovered placed by it with a prime bank in the relevant
interbank market for a period starting on the Business Day following the
date of such receipt or recovery and ending on the last day of that
Interest Period or Term.
27.5 Break Costs Certificate
Each Bank shall, as soon as reasonably practicable after a demand by the
Agent or the Original Borrower, provide a certificate to the Agent and
the Original Borrower confirming the amount of its break costs for any
Interest Period or Term in which they accrue.
28. PARENT'S INDEMNITIES
28.1 Parent's Indemnity
The Parent undertakes to indemnify:
(a) each Finance Party against any cost, claim, loss, expense (including
legal fees) or liability together with any VAT thereon, whether or
not reasonably foreseeable, which it may sustain or incur as a
consequence of the occurrence of any Event of Default or any default
by any Obligor in the performance of any of the obligations
expressed to be assumed by it in the Finance Documents;
(b) the Agent against any cost or loss it may suffer or incur as a
result of its entering into, or performing, any foreign exchange
contract for the purposes of Clause 4 (Multicurrency Option) or
Clause 30 (Payments);
(c) each Bank against any cost or loss it may suffer under Clause 26.5
(Banks' Liabilities for Costs);
(d) each Bank against any cost or loss it may suffer or incur as a
result of its funding or making arrangements to fund its portion of
an Advance requested by any Borrower but not made by reason of the
operation of this Agreement;
(e) each Bank against any loss it may suffer or incur as a result of any
change to the Term or Interest Period or currency of any Advance as
a result of the operation of this Agreement (other than by reason of
default or negligence of that Bank alone);
(f) each Bank against any loss it may suffer or incur as a result of its
funding its portion of any Advance which is denominated in sterling
by reason of Clause 7.2 (Conditions for Denominating a Revolving
Advance in an Optional Currency) or Clause 4.2 (Conditions for
Denominating a Term Advance in an Optional Currency).
28.2 Currency Indemnity
If any sum (a Sum) due from any Obligor under the Finance Documents or
any order or judgement given or made in relation thereto has to be
converted from the currency (the "First Currency") in which such Sum is
payable into another currency (the "Second Currency") for the purpose
of:
(a) making or filing a claim or proof against such Obligor; or
(b) obtaining or enforcing an order or judgement in any court or other
tribunal,
the Parent shall indemnify each person to whom such Sum is due from and
against any loss suffered or incurred as a result of any discrepancy
between (a) the rate of exchange used for such purpose to convert such
Sum from the First Currency into the Second Currency and (b) the rate or
rates of exchange available to such person at the time of receipt of
such Sum.
28.3 Acquisition Indemnity
The Parent shall indemnify each Finance Party (each an "Indemnified
Party") from time to time within five Business Days of demand of the
Indemnified Party, against any cost, claim, loss, expense (including
legal fees) or liability together with VAT thereon, whether or not
reasonably foreseeable, which the relevant Indemnified Party may sustain
or properly incur (except to the extent that the same result from the
gross negligence or wilful misconduct of that Indemnified Party) arising
out of a claim or action of any person relating to any use of the
proceeds of any Advance.
29. CURRENCY OF ACCOUNT AND PAYMENT
Sterling is the currency of account and payment for each and every sum
at any time due from an Obligor hereunder, provided that:
(a) each repayment of an Advance or Unpaid Sum or a part thereof shall
be made in the currency in which such Advance or Unpaid Sum is
denominated at the time of that repayment;
(b) each payment of interest shall be made in the currency in which the
sum in respect of which such interest is payable is denominated;
(c) each payment in respect of costs and expenses shall be made in the
currency in which the same were incurred;
(d) each payment pursuant to Clause 14.2 (Tax Indemnity), Clause 16.1
(Increased Costs) or Clause 28.1 (Parent's Indemnity) shall be made
in the currency specified by the party claiming thereunder;
(e) any amount expressed to be payable in a currency other than sterling
shall be paid in that other currency.
30. PAYMENTS
30.1 Notification of Payments
Without prejudice to the liability of each party hereto promptly to pay
each amount owing by it hereunder on the due date therefor, whenever a
payment is expected to be made by any of the parties hereto, the Agent
shall, at least two Business Days prior to the expected date for such
payment, notify all the parties hereto of the amount, currency and
timing of such payment and the identity of the party liable to make such
payment:
30.2 Payments to the Agent
On each date on which this Agreement requires an amount to be paid by an
Obligor or a Bank such Obligor or, as the case may be, such Bank shall
make the same available to the Agent for value on the due date at such
time and in such funds and to such account with such bank as the Agent
shall specify (acting reasonably) from time to time.
30.3 Payments by the Agent
(a) Save as otherwise provided herein, each payment received by the
Agent pursuant to Clause 30.2 (Payments to the Agent) shall:
(i) in the case of payment received for the account of a
Borrower, be made available by the Agent to such Borrower by
application:
(A) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due
from such Borrower hereunder to the person from whom
the amount was so received or in or towards the
purchase of any amount of any currency to be so
applied; and
(B) secondly, in or towards payment (on the date, and in
the currency and funds, of receipt) to such account
with such bank in the principal financial centre of the
country of the currency of such payment (or, in the
relation to the euro in the financial centre in a
Participating Member State or London) as such Borrower
shall have previously notified to the Agent for this
purpose; and
(ii) in the case of any other payment, be made available by the
Agent to the person entitled to receive the payment in
accordance with this Agreement (in the case of a Bank, for
the account of its Facility Office) for value the same day
by transfer to the account of the person with a bank in the
principal financial centre of the country of the currency of
such payment (or, in relation to the euro in the financial
centre in a Participating Member State) as that person has
previously notified to the Agent.
(b) A payment will be deemed to have been made by the Agent on the date
on which it is required to be made under this Agreement if the Agent
has, on or before that date, taken steps to make that payment in
accordance with the regulations or operating procedures of the
clearing or settlement system used by the Agent in order to make the
payment.
30.4 Payments by the Agent to the Banks
Any amount payable by the Agent to the Banks under this Agreement in the
currency of a Participating Member State shall be paid in euro.
30.5 No Set-off
All payments required to be made by an Obligor hereunder shall be
calculated without reference to any set-off or counterclaim and shall be
made free and clear of and without any deduction for or on account of
any set-off or counterclaim.
30.6 Clawback
Where a sum is to be paid hereunder to the Agent for account of another
person, the Agent shall not be obliged to make the same available to
that other person or to enter into or perform any exchange contract in
connection therewith until it has been able to establish to its
satisfaction that it has actually received such sum, but if it does so
and it proves to be the case that it had not actually received such sum,
then the person to whom such sum or the proceeds of such exchange
contract was so made available shall on request refund the same to the
Agent together with an amount sufficient to indemnify the Agent against
any cost or loss it may have suffered or incurred by reason of its
having paid out such sum or the proceeds of such exchange contract prior
to its having received such sum.
30.7 Partial Payments
If and whenever a payment is made by an Obligor hereunder and the Agent
receives an amount less than the due amount of such payment the Agent
may apply the amount received towards the obligations of the Obligors
under this Agreement in the following order:
(a) first, in or towards payment of any unpaid fees, costs and expenses
of each of the Agent and the Mandated Lead Arrangers for which any
Obligor is liable;
(b) secondly, in or towards payment pro rata of any accrued interest due
but unpaid;
(c) thirdly, in or towards payment pro rata of any principal due but
unpaid; and
(d) fourthly, in or towards payment pro rata of any other sum due but
unpaid.
30.8 Variation of Partial Payments
The order of payments set out in Clause 30.7 (Partial Payments) shall
override any appropriation made by the Obligor to which the partial
payment relates but the order set out in paragraphs (b), (c) and (d) of
Clause 30.7 (Partial Payments) may be varied if agreed by all the Banks.
30.9 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 at the rate payable on the original due date.
31. SET-OFF
31.1 Contractual Set-off
At any time after an Event of Default has occurred and is continuing
unremedied or unwaived, each Bank shall be entitled to apply any credit
balance to which such Obligor is entitled on any account of such Obligor
with such Bank in satisfaction of any sum due and payable from such
Obligor to such Bank under the Finance Documents but unpaid. For this
purpose, each Bank shall be entitled to purchase with the moneys
standing to the credit of any such account such other currencies as may
be necessary to effect such application.
31.2 Set-off not Mandatory
No Bank shall be obliged to exercise any right given to it by Clause
31.1 (Contractual Set-off).
32. SHARING
32.1 Payments to Banks
If a Bank (a Recovering Bank) applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is
received or recovered other than in accordance with Clause 30
(Payments), then such Recovering Bank shall:
(a) notify the Agent of such receipt or recovery;
(b) at the request of the Agent, promptly 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 such Recovering
Bank as its share of any payment to be made in accordance with
Clause 30.7 (Partial Payments).
32.2 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 Bank) in accordance with Clause 30.7 (Partial
Payments).
32.3 Recovering Bank's Rights
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 32.2
(Redistribution of Payments) in respect of the Sharing Payment (and the
relevant Obligor shall be liable to the Recovering Bank in an amount
equal to the Sharing Payment).
32.4 Repayable Recoveries
If any part of the Sharing Payment received or recovered by a Recovering
Bank becomes repayable and is repaid by such Recovering Bank, then:
(a) each party which has received a share of such Sharing Payment
pursuant to Clause 32.2 (Redistribution of Payments) shall, upon
request of the Agent, pay to the Agent for account of such
Recovering Bank an amount equal to its share of such Sharing
Payment; and
(b) such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing party for the amount so reimbursed.
32.5 Exception
This Clause 32 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor.
32.6 Recoveries Through Legal Proceedings
If any Bank intends to commence any action in any court it shall give
prior notice to the Agent and the other Banks. If any Bank shall
commence any action in any court to enforce its rights hereunder and, as
a result thereof or in connection therewith, receives any amount, then
such Bank shall not be required to share any portion of such amount with
any Bank which has the legal right to, but does not, join in such action
or commence and diligently prosecute a separate action to enforce its
rights in another court.
33. THE AGENT, THE MANDATED LEAD ARRANGERS AND THE BANKS
33.1 Appointment of the Agent
Each of the Mandated Lead Arrangers and the Banks hereby appoints the
Agent to act as its agent in connection herewith and authorises the
Agent to exercise such rights, powers, authorities and discretions as
are specifically delegated to the Agent by the terms hereof together
with all such rights, powers, authorities and discretions as are
reasonably incidental thereto.
33.2 Agent's Discretions
The Agent may:
(a) assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto, that
(i) any representation made or deemed to be made by an Obligor in
connection herewith is true, (ii) no Event of Default or Default has
occurred, (iii) no Obligor is in breach of or default under its
obligations under the Finance Documents and (iv) any right, power,
authority or discretion vested herein upon an Instructing Group, the
Banks or any other person or group of persons has not been
exercised;
(b) assume that (i) the Facility Office of each Bank is that notified to
it by such Bank in writing and (ii) the information provided by each
Bank pursuant to Clause 38 (Notices), Clause 33.14 (Banks' Mandatory
Cost Details) and Schedule 9 (Mandatory Costs) is true and correct
in all respects until it has received from such Bank notice of a
change to the Facility Office or any such information and act upon
any such notice until the same is superseded by a further notice;
(c) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services may
to it seem necessary, expedient or desirable and rely upon any
advice so obtained;
(d) rely as to any matters of fact which might reasonably be expected to
be within the knowledge of an Obligor upon a certificate signed by
or on behalf of such Obligor;
(e) rely upon any communication or document believed by it to be
genuine;
(f) refrain from exercising any right, power or discretion vested in it
as agent hereunder unless and until instructed by Instructing Group
as to whether or not such right, power or discretion is to be
exercised and, if it is to be exercised, as to the manner in which
it should be exercised;
(g) refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising
out of or in connection with this Agreement until it shall have
received such security as it may require (whether by way of payment
in advance or otherwise) for all costs, claims, losses, expenses
(including legal fees) and liabilities together with any VAT thereon
which it will or may expend or incur in complying with such
instructions; and
(h) assume (unless it has specific notice to the contrary) that any
notice or request made by the Parent is made on behalf of all the
Obligors.
33.3 Agent's Obligations
The Agent shall:
(a) promptly inform each Bank of the contents of any notice or document
received by it in its capacity as Agent from an Obligor under the
Finance Documents;
(b) promptly notify each Bank of the occurrence of any Event of Default
or any default by an Obligor in the due performance of or compliance
with its obligations under this Agreement of which the Agent has
notice from any other party hereto;
(c) save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on the Mandated Lead
Arrangers and the Banks; and
(d) if so instructed by an Instructing Group, refrain from exercising
any right, power or discretion vested in it as agent under the
Finance Documents.
The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
33.4 Excluded Obligations
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor the Mandated Lead Arrangers shall:
(a) be bound to enquire as to (i) whether or not any representation made
or deemed to be made by an Obligor in connection herewith is true,
(ii) the occurrence or otherwise of any Event of Default or Default,
(iii) the performance by an Obligor of its obligations under the
Finance Documents or (iv) any breach of or default by an Obligor of
or under its obligations under the Finance Documents;
(b) be bound to account to any Bank for any sum or the profit element of
any sum received by it for its own account;
(c) be bound to disclose to any other person any information relating to
any member of the Group if (i) such person, on providing such
information, expressly stated to the Agent or, as the case may be,
the Mandated Lead Arrangers, that such information was confidential
or (ii) such disclosure would or might in its opinion constitute a
breach of any law or be otherwise actionable at the suit of any
person;
(d) be under any obligations other than those for which express
provision is made herein; or
(e) be or be deemed to be a fiduciary for any other party hereto.
33.5 Indemnification
Each Bank shall, in its Proportion, from time to time on demand by the
Agent, indemnify the Agent against any and all costs, claims, losses,
expenses (including legal fees) and liabilities together with any VAT
thereon which the Agent may incur, otherwise than by reason of its own
gross negligence or wilful misconduct, in acting in its capacity as
agent hereunder (other than any which have been reimbursed by the Parent
pursuant to Clause 28.1 (Parent's Indemnity)).
33.6 Exclusion of Liabilities
Except in the case of gross negligence or wilful default, none of the
Agent and the Mandated Lead Arrangers accepts any responsibility:
(a) for the adequacy, accuracy and/or completeness of the Information
Memorandum or any other information supplied by the Agent or the
Mandated Lead Arrangers, by an Obligor or by any other person in
connection herewith or any other agreement, arrangement or document
entered into, made or executed in anticipation of, pursuant to or in
connection with the Finance Documents;
(b) for the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance
Documents; or
(c) for the exercise of, or the failure to exercise, any judgement,
discretion or power given to any of them by or in connection with
the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, pursuant
to or in connection with the Finance Documents.
Accordingly, none of the Agent and the Mandated Lead Arrangers shall be
under any liability (whether in negligence or otherwise) in respect of
such matters, save in the case of gross negligence or wilful misconduct.
33.7 No Actions
Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Agent or the Mandated
Lead Arrangers any claim it might have against any of them in respect of
the matters referred to in Clause 33.6 (Exclusion of Liabilities).
33.8 Business with the Group
The Agent and the Mandated Lead Arrangers may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with any member of the Group.
33.9 Resignation
The Agent may resign its appointment hereunder at any time (after
consultation with the Parent) without assigning any reason therefor by
giving not less than thirty days' prior notice to that effect to each of
the other parties hereto, provided that no such resignation shall be
effective until a successor for the Agent is appointed in accordance
with the succeeding provisions of this Clause 33.
33.10 Removal of Agent
An Instructing Group may remove the Agent from its role as agent
hereunder (after consultation with the Parent) by giving notice to that
effect to each of the other parties hereto. Such removal shall take
effect only when a successor to the Agent is appointed in accordance
with the terms hereof.
33.11 Successor Agent
If the Agent gives notice of its resignation pursuant to Clause 33.9
(Resignation) or it is removed pursuant to Clause 33.10 (Removal of
Agent), then any reputable and experienced bank or other financial
institution with an office in London may be appointed as a successor to
the Agent by an Instructing Group (after consultation with the Parent)
during the period of such notice but, if no such successor is so
appointed, the Agent may appoint such a successor itself. The resigning
Agent shall provide its successor, with (or with copies of) such of its
records as its successor requires to carry out its functions under this
Agreement.
33.12 Rights and Obligations
If a successor to the Agent is appointed under the provisions of Clause
33.11 (Successor Agent), then (a) the retiring or departing Agent shall
be discharged from any further obligation hereunder but shall remain
entitled to the benefit of the provisions of this Clause 33 and (b) its
successor and each of the other parties hereto shall have the same
rights and obligations amongst themselves as they would have had if such
successor had been a party hereto.
33.13 Own Responsibility
It is understood and agreed by each Bank that at all times it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigation into all risks arising under
or in connection with the Finance Documents including, but not limited
to:
(a) the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
(b) the legality, validity, effectiveness, adequacy and enforceability
of the Finance Documents and any other agreement, arrangement or
document entered into, made or executed in anticipation of, pursuant
to or in connection with the Finance Documents;
(c) whether such Bank has recourse, and the nature and extent of that
recourse, against an Obligor or any other person or any of their
respective assets under or in connection with the Finance Documents,
the transactions therein contemplated or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with this Agreement;
and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent or the
Mandated Lead Arrangers, an Obligor, or by any other person in
connection with the Finance Documents, the transactions contemplated
therein or any other agreement, arrangement or document entered
into, made or executed in anticipation of, pursuant to or in
connection with the Finance Documents.
Accordingly, each Bank acknowledges to the Agent and the Mandated Lead
Arrangers that it has not relied on and will not hereafter rely on the
Agent and the Mandated Lead Arrangers or any of them in respect of any
of these matters.
33.14 Banks' Mandatory Cost Details
Each Bank will supply the Agent with such information and in such detail
as the Agent may require in order to calculate the Mandatory Cost in
accordance with Schedule 9 (Mandatory Costs).
33.15 Agency Division Separate
In acting as agent hereunder for the Banks, 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 and,
notwithstanding the foregoing provisions of this Clause 33, any
information received by some other division or department of the Agent
may be treated as confidential and shall not be regarded as having been
given to the Agent's agency division.
34. ASSIGNMENTS AND TRANSFERS
34.1 Binding Agreement
The Finance Documents shall be binding upon and enure to the benefit of
each party hereto and its or any subsequent successors and Transferees.
34.2 No Assignments and Transfers by the Obligors
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations under the Finance Documents.
34.3 Assignments and Transfers by Banks
(a) Any Bank may, at any time, assign all or any of its rights and
benefits under the Finance Documents or transfer in accordance with
Clause 34.5 (Transfers by Banks) all or any of its rights, benefits
and obligations under the Finance Documents to a bank or financial
institution provided that such bank or financial institution takes
an assignment or transfer of a minimum Sterling Amount of
(pound)5,000,000 or, if less, the amount of the Bank's Commitment.
(b) A Bank may not assign any of its rights and benefits under the
Finance Documents (without prejudice to the right of a Bank to
transfer all or any of its rights, benefits and obligations under
the Finance Documents in accordance with Clause 34.5 (Transfers by
Banks)) without the prior consent of the Parent, such consent not to
be unreasonably withheld or delayed, in respect of any Advance
originally made by a Bank within sub-paragraph (b) of the definition
of Qualifying Lender to a Bank within sub-paragraph (a) of that
definition.
34.4 Assignments by Banks
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 34.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has delivered a
notice to the Agent confirming in favour of the Agent, the Mandated Lead
Arrangers and the other Banks that it shall be under the same
obligations towards each of them as it would have been under if it had
been an original party hereto as a Bank (whereupon such assignee shall
became a party hereto as a Bank), the Agent, the Mandated Lead Arrangers
and the other Banks shall not be obliged to recognise such assignee is
having the rights against each of them which it would have had if it had
been such a party hereto.
34.5 Transfers by Banks
If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations under the Finance Documents as contemplated in Clause 34.3
(Assignments and Transfers by Banks), then such transfer may be effected
by the delivery to the Agent of a duly completed Transfer Certificate
executed by such Bank and the relevant Transferee in which event, on the
later of the Transfer Date specified in such Transfer Certificate and
the fifth Business Day after (or such earlier Business Day endorsed by
the Agent on such Transfer Certificate falling on or after) the date of
delivery of such Transfer Certificate to the Agent:
(a) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer by novation its rights, benefits and
obligations under the Finance Documents, each of the Obligors and
such Bank shall be released from further obligations towards one
another under the Finance Documents and their respective rights
against one another shall be cancelled (such rights and obligations
being referred to in this Clause 34.5 as discharged rights and
obligations);
(b) each of the Obligors and the Transferee party thereto shall assume
obligations towards one another and/or acquire rights against one
another which differ from such discharged rights and obligations
only insofar as such Obligor and such Transferee have assumed and/or
acquired the same in place of such Obligor and such Bank;
(c) the Agent, the Mandated Lead Arrangers, such Transferee and the
other Banks shall acquire the same rights and benefits and assume
the same obligations between themselves as they would have acquired
and assumed had such Transferee been an original party hereto as a
Bank with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer and to that extent the
Agent, the Mandated Lead Arrangers and the relevant Bank shall each
be released from further obligations to each other under the Finance
Documents; and
(d) such Transferee shall become a party hereto as a Bank.
34.6 Additional Costs
If any assignment or transfer by a Bank would, at the time thereof,
result in additional amounts becoming payable under Clause 16.1
(Increased Costs) then, unless the assignment or transfer was being
effected pursuant to Clause 18 (Mitigation), the relevant Obligor shall
be required to pay such amounts or additional amounts to or for the
account of the assignee or transferee only to the extent that it would
have been required to pay the same had there been no such assignment or
transfer.
34.7 Assignment and Transfer Fees
On the date upon which an assignment takes effect pursuant to Clause
34.4 (Assignments by Banks) or a transfer takes effect pursuant to
Clause 34.5 (Transfers by Banks) the relevant assignee or Transferee
shall pay to the Agent for its own account a fee of (pound)1,500.
34.8 Disclosure of Information
Any Bank may disclose to any person:
(a) to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights, benefits
and obligations under the Finance Documents;
(b) with (or through) whom such Bank 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 any Obligor; or
(c) to whom information may be required to be disclosed by any
applicable law,
such information about any Obligor or the Group and the Finance
Documents as such Bank shall consider appropriate provided that, in
relation to paragraphs (a) and (b) above, the person to whom such
information is to be given has entered into a Confidentiality
Undertaking.
34.9 Notification
The Agent shall within fourteen days of receiving a Transfer Certificate
notify the Parent of any assignment or transfer completed pursuant to
this Clause 34.
35. CHANGES TO THE OBLIGORS
35.1 Request for Additional Borrower
The Parent may request that any of its wholly-owned Subsidiaries becomes
an Additional Borrower by delivering to the Agent an Accession
Memorandum duly executed by the Parent and such Subsidiary, together
with the documents and other evidence listed in Schedule 7 (Additional
Conditions Precedent) in relation to such Subsidiary.
35.2 Borrower Conditions Precedent
A wholly-owned Subsidiary of the Parent in respect of which the Parent
has delivered an Accession Memorandum to the Agent, shall become an
Additional Borrower and assume all the rights, benefits and obligations
of a Borrower as if it had been an Original Borrower on the date on
which the Agent notifies the Parent that the Agent has received, in form
and substance satisfactory to it, all documents and other evidence
listed in Schedule 7 (Additional Conditions Precedent) in relation to
such Subsidiary, unless on such date an Event of Default or Default is
continuing or would occur as a result of such Subsidiary becoming an
Additional Borrower.
35.3 Resignation of an Additional Borrower
If at any time an Additional Borrower is under no actual or contingent
obligation as a Borrower under or pursuant to any Finance Document, the
Parent may request that such Borrower shall cease to be a Borrower by
delivering to the Agent a Resignation Notice. Such Resignation Notice
shall be accepted by the Agent on the date on which it notifies the
Parent that it is satisfied that such Borrower is under no actual or
contingent obligation as a Borrower under or pursuant to any Finance
Document and such Borrower shall immediately cease to be a Borrower and
shall have no further rights, benefits or obligations under the Finance
Documents save for those which arose prior to such date.
35.4 Request for Additional Guarantor
The Parent may request that any of its wholly-owned Subsidiaries become
an Additional Guarantor by delivering to the Agent an Accession
Memorandum duly executed by the Parent and such Subsidiary, together
with the documents and other evidence listed in Schedule 7 (Additional
Conditions Precedent) in relation to such Subsidiary.
35.5 Guarantor Conditions Precedent
A wholly-owned Subsidiary of the Parent in respect of which the Parent
has delivered an Accession Memorandum to the Agent, shall become an
Additional Guarantor and assume all the rights, benefits and obligations
of a Guarantor as if it had been an Original Guarantor on the date on
which the Agent notifies the Parent that the Agent has received, in form
and substance satisfactory to it, all documents and other evidence
listed in Schedule 7 (Additional Conditions Precedent) in relation to
such Subsidiary, unless on such date an Event of Default or Default is
continuing or would occur as a result of such Subsidiary becoming an
Additional Guarantor.
35.6 Resignation of a Guarantor
If at any time:
(a) a Guarantor 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 35.4 (Request for Additional Guarantors); or
(b) the Holding Company of a Guarantor (the "Relevant Guarantor")
becomes a Guarantor, provided that:
(i) such Relevant 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 Relevant Guarantor notifies the Agent of any sale,
lease, transfer or other disposal in accordance with
paragraph (a) of this Clause 35.6; and
(iii) the Parent may not resign without the consent of all Banks,
the Parent may request that such Guarantor shall cease to be a Guarantor
by delivering to the Agent a Resignation Notice. Such Resignation Notice
shall be accepted by the Agent on the date on which it notifies the
Parent that it is satisfied that either of the conditions in paragraphs
(a) and (b) above is satisfied and such Guarantor shall immediately
cease to be a Guarantor and shall have no further rights, benefits or
obligations under the Finance Documents save for those which arose prior
to such date.
36. CALCULATIONS AND EVIDENCE OF DEBT
36.1 Basis of Accrual
Any interest, commission or fee accruing under the Finance Documents
will accrue from day to day and is calculated on the basis of actual
number of days elapsed and a year of 360 days (or, in the case of any
Advance denominated in sterling 365 days) or, in any case where market
practice differs, in accordance with market practice.
36.2 Proportionate Reductions
Any repayment of an Advance denominated in an Optional Currency shall
reduce the amount of such Advance by the amount of such Optional
Currency repaid and shall reduce the Sterling Amount of such Advance
proportionately.
36.3 Quotations
If on any occasion a Reference Bank or Bank fails to supply the Agent
with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Agent,
provided that, in relation to determining LIBOR or EURIBOR, this Clause
36.3 shall not apply if only one Reference Bank supplies a quotation.
36.4 Evidence of Debt
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
36.5 Control Accounts
The Agent shall maintain on its books a control account or accounts in
which shall be recorded (a) the amount of any Advance or any Unpaid Sum
and each Bank's share therein, (b) the amount of all principal, interest
and other sums due or to become due from an Obligor and each Bank's
share therein and (c) the amount of any sum received or recovered by the
Agent hereunder and each Bank's share therein.
36.6 Prima Facie Evidence
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 36.4 (Evidence of Debt) and Clause 36.5 (Control Accounts) shall
be prima facie evidence of the existence and amounts of the specified
obligations of the Obligors.
36.7 Certificates of Banks
A certificate of a Bank as to (a) the amount by which a sum payable to
it hereunder is to be increased under Clause 14.1 (Tax Gross-up) or
becomes payable pursuant to Clause 27.4 (Break Costs), (b) the amount
for the time being required to indemnify it against any such cost,
payment or liability as is mentioned in Clause 14.2 (Tax Indemnity),
Clause 16.1 (Increased Costs) or Clause 28.1 (Parent's Indemnity) or (c)
the amount of any credit, relief, remission or repayment as is mentioned
in Clause 15.3 (Tax Credit Payment) shall, in the absence of manifest
error, be prima facie evidence of the existence and amounts of the
specified obligations of the Obligors.
36.8 Agent's Certificates
A certificate of the Agent as to the amount at any time due from a
Borrower or a Parent hereunder or the amount which, but for any of the
obligations of such Borrower or a Parent hereunder being or becoming
void, voidable, unenforceable or ineffective, at any time would have
been due from such Borrower hereunder shall, in the absence of manifest
error, be conclusive for the purposes of Clause 24 (Guarantee and
Indemnity).
36.9 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 Banks will be the
amount specified in a certificate issued by (a) the Agent (as
representative of the Banks) in accordance with Clause 36.8 (Agent's
Certificates) reflecting the balance of the accounts referred to in
Clause 36.5 (Control Accounts) and/or (b) any Bank in accordance with
Clause 36.7 (Certificates of Banks) reflecting the balance of the
accounts referred to in Clause 36.4 (Evidence of Debt).
37. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
37.1 Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver thereof, nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise thereof or the
exercise of any other right or remedy. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies
provided by law.
37.2 Partial Invalidity
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction
shall in any way be affected or impaired thereby.
38. NOTICES
38.1 Communications in Writing
Each communication to be made under the Finance Documents shall be made
in writing and, unless otherwise stated, shall be made by fax or letter.
38.2 Addresses
Any communication or document to be made or delivered pursuant to the
Finance Documents shall (unless the recipient of such communication or
document has, by fifteen days' written notice to the Agent, specified
another address or fax number) be made or delivered to the address or
fax number:
(a) in the case of the Original Obligor and the Agent, identified with
its name below:
Original Obligor:
Address: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇ (▇) ▇▇▇▇ ▇▇ ▇▇▇▇
Agent:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
(b) in the case of each Bank, notified in writing to the Agent prior to
the date hereof (or, in the case of a Transferee, at the end of the
Transfer Certificate to which it is a party as Transferee); and
(c) in the case of each Additional Obligor, in the relevant Accession
Memorandum,
provided that not more than one address may be specified by each party
pursuant to this Clause 38.2 at any time.
38.3 Delivery
Any communication or document to be made or delivered by one person to
another pursuant to the Finance Documents shall:
(a) if by way of fax, be deemed to have been received when transmission
has been completed; and
(b) if by way of letter, be deemed to have been delivered when left at
the relevant address or, as the case may be, ten days after being
deposited in the post postage prepaid in an envelope addressed to it
at such address,
provided that any communication or document to be made or delivered to
the Agent shall be effective only when received by its agency division
and then only if the same is expressly marked for the attention of the
department or officer identified with the Agent's signature below (or
such other department or officer as the Agent shall from time to time
specify for this purpose).
38.4 Notification of Changes
Promptly upon receipt of notification of a change or address of fax
number pursuant to Clause 38.2 (Addresses) or changing its own address
or fax number, the Agent shall notify the other parties hereto of such
change.
38.5 English Language
Each communication and document made or delivered by one party to
another pursuant to the Finance Documents shall be in the English
language or accompanied by a translation thereof into English certified
(by an officer of the person making or delivering the same) as being a
true and accurate translation thereof.
38.6 Deemed Receipt by the Obligors
Any communication or document made or delivered to the Parent in
accordance with Clause 38.3 (Delivery) shall be deemed to have been made
or delivered to each of the Obligors.
39. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
40. AMENDMENTS
40.1 Amendments
If the Agent has the prior consent of an Instructing Group, the Agent
and the Obligors may from time to time agree in writing to amend the
Finance Documents or to waive, prospectively or retrospectively, any of
the requirements of the Finance Documents and any amendments or waivers
so agreed shall be binding on all the Finance Parties and the Obligors
provided that no such waiver or amendment shall subject any party hereto
to any new or additional obligations without the consent of such party.
40.2 Amendments Requiring the Consent of all the Banks
An amendment or waiver which relates to:
(a) Clause 32 (Sharing) or this Clause 40;
(b) a change in the principal amount of or currency of any Advance, or
deferral of the Revolving Termination Date or a Term Repayment Date
or the Final Term Repayment Date;
(c) a change in the Margin, the amount or currency of any payment of
interest, fees or any other amount payable hereunder to any Finance
Party or deferral of the date for payment thereof;
(d) a release of the Parent from any of its obligations set out in
Clause 24 (Guarantee and Indemnity);
(e) the definition of Event of Default, Instructing Group, Material
Subsidiary, Default, Revolving Availability Period, Term
Availability Period, Term Repayment Date or Final Term Repayment
Date; or
(f) any provision which contemplates the need for the consent or
approval of all the Banks,
shall not be made without the prior consent of all the Banks.
40.3 Exceptions
Notwithstanding any other provisions hereof, the Agent shall not be
obliged to agree to any such amendment or waiver if the same would:
(a) amend or waive this Clause 40, Clause 26 (Costs and Expenses) or
Clause 33 (The Agent, the Mandated Lead Arrangers and the Banks); or
(b) otherwise amend or waive any of the Agent's rights hereunder or
subject the Agent or the Mandated Lead Arrangers to any additional
obligations hereunder.
41. GOVERNING LAW
(a) This Agreement is governed by English law.
(b) If any of the Guarantors is represented by an attorney or attorneys
in connection with the signing and/or execution and/or delivery of
this Agreement or any agreement or document referred to herein or
made pursuant hereto and the relevant power or powers of attorney is
or are expressed to be governed by the laws and regulations of a
particular jurisdiction, it is hereby expressly acknowledged and
accepted by the other parties hereto that such laws shall govern the
existence and extent of such attorney's or attorneys' authority and
the effects of the exercise thereof.
42. JURISDICTION
42.1 English Courts
The courts of England have exclusive jurisdiction to settle any dispute
(a Dispute) arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination of
this Agreement or the consequences of its nullity).
42.2 Convenient Forum
The parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes between them and, accordingly,
that they will not argue to the contrary.
42.3 Non-Exclusive Jurisdiction
This Clause 42 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 42.1 (English Courts), it does not
prevent any Finance Party from taking proceedings relating to a Dispute
(Proceedings) in any other courts with jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent Proceedings in
any number of jurisdictions.
42.4 Service of process
Without prejudice to any other mode of service allowed under any
relevant law, each Obligor (other than an Obligor incorporated in
England Wales):
(a) irrevocably appoints the Original Borrower as its agent for service
of process in relation to any proceedings before the English courts
in connection with any Finance Document (and the Original Borrower,
by its execution of this Agreement, accepts that appointment); and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
SCHEDULE 1
THE ORIGINAL PARTIES
Part I
The Banks
Name of Bank Term Commitment Revolving Commitment
(GBP) (GBP)
The Royal Bank of Scotland plc 23,888,788 61,853,333
HSBC Bank plc 23,888,788 61,853,333
BNP Paribas SA (London Branch) 21,571,488 55,853,333
▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ Branch 21,102,668 54,639,454
Lloyds TSB Bank plc 19,104,851 49,466,666
Bank of America International Limited 13,888,788 17,438,889
The Bank of Tokyo-Mitsubishi Ltd. (London Branch) 11,946,969 13,053,031
ING Bank N.V., London Branch 7,157,882 18,533,333
Societe Generale 7,157,882 18,533,333
Wachovia Bank N.A. (London Branch) 7,157,882 18,533,333
The Governor and Company of the Bank of Ireland 4,789, 087 12,400,000
BRED Banque Populaire 4,789,087 12,400,000
Banco Bilbao Vizcaya Argentaria S.A. (London Branch) 2,394,543 6,200,000
Banco Popolare di Lodi S.C.A.R.L., London Branch 2,394,543 6,200,000
IXIS Corporate & Investment Bank 2,394,543 6,200,000
Credit Agricole Ille de France 2,317,300 6,000,000
State Bank of India (London Branch) 1,666,667 3,333,333
▇▇▇▇▇ ▇▇▇ Commercial Bank Limited (London Branch) 1,184,398 3,066,667
--------------------------------------------
Total 178,796,154 425,558,038
--------------------------------------------
Part II
The Original Guarantors
------------------------------------- ---------------------------------- -----------------------------------
Name Company Number/Trade Register of Jurisdiction
the Chamber of Commerce and
Industry in Amsterdam (The
Netherlands)
------------------------------------- ---------------------------------- -----------------------------------
RMC Group Limited 00249776 UK
------------------------------------- ---------------------------------- -----------------------------------
CEMEX Espana, S.A. No. Hoja-Registro Mercantil, Spain
Madrid: M-156542, NIF: A46/004214
------------------------------------- ---------------------------------- -----------------------------------
CEMEX Caracas Investments B.V. 34121194 The Netherlands
------------------------------------- ---------------------------------- -----------------------------------
CEMEX Egyptian Investment B.V. 34108365 The Netherlands
------------------------------------- ---------------------------------- -----------------------------------
CEMEX ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------- ---------------------------------- -----------------------------------
CEMEX American Holdings B.V. 34213058 The Netherlands
------------------------------------- ---------------------------------- -----------------------------------
CEMEX Shipping B.V. 34213063 The Netherlands
------------------------------------- ---------------------------------- -----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------- ---------------------------------- -----------------------------------
SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: The Agent
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended) varied, novated or
supplemented (the Credit Agreement) dated 18th October, 2002 whereby a
multicurrency term and revolving loan facility was made available to a group
of borrowers including RMC Group Limited by a group of banks on whose behalf
you act as agent in connection therewith.
1. Terms defined in the Credit Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee
and Portion Transferred are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under
the heading "Bank's Participation in the Revolving Facility",
"Revolving Advances", "Bank's Participation in the Term Facility" and
"Term Advances" accurately summarises its participation in the Credit
Agreement and the Interest Period or Term of any existing Advances and
(ii) requests the Transferee to accept and procure the transfer by
novation to the Transferee of the Portion Transferred (specified in
the schedule hereto) of its Revolving Commitment and its Term
Commitment and/or its participation in such Advance(s) by counter
signing and delivering this Transfer Certificate to the Agent at its
address for the service of notices specified in the Credit Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 34.5 (Transfers by Banks) of the Credit Agreement
so as to take effect in accordance with the terms thereof on the
Transfer Date or on such later date as may be determined in accordance
with the terms thereof.
4. The Transferee confirms that it has received a copy of the Credit
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will
not hereafter rely on the Bank to check or enquire on its behalf into
the legality, validity, effectiveness, adequacy, accuracy or
completeness of any such information and further agrees that it has
not relied and will not rely on the Bank to assess or keep under
review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of the Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the Credit Agreement that it will perform in accordance
with their terms all those obligations which by the terms of the
Finance Documents, will be assumed by it after delivery of this
Transfer Certificate to the Agent and satisfaction of the conditions
(if any) subject to which this Transfer Certificate is expressed to
take effect.
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or any document
relating thereto and assumes no responsibility for the financial
condition of` the Obligors or for the performance and observance by
the Obligors of any of its obligations under the Finance Documents or
any document relating thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are hereby
excluded.
7. The Bank hereby gives notice that nothing herein or in the Finance
Documents (or any document relating thereto) shall oblige the Bank to
(a) accept a re transfer from the Transferee of the whole or any part
of its rights, benefits and/or obligations under the Finance Documents
transferred pursuant hereto or (b) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason
whatsoever including the non performance by an Obligor or any other
party to the Finance Documents (or any document relating thereto) of
its obligations under any such document The Transferee hereby
acknowledges the absence of any such obligation as is referred to in
(a) or (b) above.
8. This Transfer Certificate and the rights, benefits and obligations of
the parties hereunder shall be governed by and construed in accordance
with English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation in the Revolving
Facility:
Bank's Revolving Commitment Portion Transferred
5. Revolving Advance(s): Term and Portion Transferred
Amount of Bank's Participation Repayment Date
6. Bank's Participation in the Portion Transferred
Term Facility:
Bank's Term Commitment
7. Term Advance(s): Interest Period Portion Transferred
Amount of Bank's Participation
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments in sterling:
Fax:
Telephone:
------------------------------------------------------------------------------
* Details of the Bank's Available Term Commitment should not be completed
after the last day of the Term Availability Period
SCHEDULE 3
CONDITIONS PRECEDENT
1. In relation to Original Borrower:
(a) a copy, certified as at the date of this Agreement a true and up
to date copy by an Authorised Signatory of the Original
Borrower, of the constitutional documents of the Original
Borrower;
(b) a copy, certified as at the date of this Agreement a true and up
to date copy by an Authorised Signatory of the Original
Borrower, of a board resolution of the Original Borrower
approving the execution, delivery and performance of the Finance
Documents and the terms and conditions thereof and authorising a
named person or persons to sign the Finance Documents and any
documents to be delivered by the Original Borrower pursuant
thereto;
(c) a certificate of an Authorised Signatory of the Original
Borrower setting out the names and signatures of the persons
authorised to sign, on behalf of the Original Borrower, the
Finance Documents and any documents to be delivered by the
Original Borrower pursuant thereto; and
(d) a certificate of an Authorised Signatory of the Original
Borrower confirming that utilisation of the Facilities would not
breach any restriction of its borrowing powers.
2. An opinion of ▇▇▇▇▇▇▇▇ Chance LLP, solicitors to the Agent, in
substantially the form distributed to the Banks prior to the signing
of this Agreement.
3. Evidence that the fees, costs and expenses required to be paid by the
Original Borrower pursuant Clause 25.3 (Agency Fee), Clause 26.1
(Transaction Expenses) and Clause 26.3 (Stamp Taxes) have been paid.
4. A copy, certified a true copy by an Authorised Signatory of the
Original Borrower, of the Original Financial Statements of the
Original Borrower.
5. A certificate signed by an Authorised Signatory of the Original
Borrower confirming which companies within the RMC Group are Material
Subsidiaries.
6. The Syndication Letter.
7. Evidence satisfactory to the Agent that the Existing Facilities will
be repaid from the proceeds of the first drawdowns of the Facilities,
and cancelled.
SCHEDULE 4
NOTICE OF DRAWDOWN
From: [Borrower]
To: [Insert name of Agent]
Dated:
Dear Sirs,
1. We refer to an agreement (the "Credit Agreement") dated 18th October,
2002 as amended and made between a group of borrowers including RMC
Group Limited (the "Borrower"), Cemex Espana, S.A. (the "Parent") and
others as guarantors, Banc of America Securities Limited, BNP Paribas,
HSBC Investment Bank plc, The Royal Bank of Scotland plc and WestLB
Aktiengesellschaft as Mandated Lead Arrangers, The Royal Bank of
Scotland plc as Agent, and the financial institutions defined therein
as Banks.
2. Terms defined in the Credit Agreement shall have the same meaning in
this notice.
3. This notice is irrevocable [and we confirm that the purpose of this
Advance is in conformity with Clause 2.3 (Purpose and Application of
the Revolving Facility) of the Credit Agreement].*
4. We hereby give you notice that, pursuant to the Credit Agreement and
on [date of proposed Advance], we wish to borrow a [Term/Revolving]
Advance having an Original Sterling Amount of (pound)[o] upon the
terms and subject to the conditions contained therein.
5. We would like this Advance to be denominated in [currency].
6. [We would like this Advance to have a first Interest Period of [ ]
months duration.]*/[We would like this Advance to be divided upon the
making thereof into Advances as follows:
Original Sterling Amount Currency [Duration of First Interest
Period]*
OR
We would like this Advance to have a Term of [o] months duration.]**
7. We confirm that, at the date hereof, the Repeated Representations are
true in all material respects and no Event of Default [or Default] is
continuing.
8. The proceeds of this drawdown should be credited to [insert account
details].
Yours faithfully
...................................
Authorised Signatory
for and on behalf of
[Name of Borrower]
------------------------------------------------------------------------------
* Only for Term Advances.
** Delete as appropriate.
SCHEDULE 5
FORM OF COMPLIANCE CERTIFICATE
Part I
Parent's Compliance Certificate
To: [Insert name of Agent]
Date:
Dear Sirs,
We refer to an agreement (the "Credit Agreement") dated 18th October, 2002 as
amended and made between a group of borrowers including RMC Group Limited (the
"Borrower"), Cemex Espana, S.A. (the "Parent") and others as guarantors, Banc
of America Securities Limited, BNP Paribas, HSBC Investment Bank plc, The
Royal Bank of Scotland plc and WestLB Aktiengesellschaft as Mandated Lead
Arrangers, The Royal Bank of Scotland plc as Agent, and the financial
institutions defined therein as Banks.
Terms defined in the Credit Agreement shall bear the same meaning herein.
We confirm that:
[Insert details of financial conditions to be certified]
We confirm that the following companies constitute Material Subsidiaries for
the purposes of the Credit Agreement: [o].
[We confirm that, as at the date hereof, no Event of Default has occurred and
is continuing.]*
This compliance certificate is given without liability by the
[auditors/director].
[Signed: ...............
Director
of
[Parent]
or
.....................
for and on behalf of
[name of auditors of the Parent]
* Delete if compliance certificate signed by Auditors. If this statement
cannot be made, the certificate should identify any Event of Default that is
outstanding and the steps if any, being taken to remedy it.
Part II
Original Borrower's Compliance Certificate
To: [Insert name of Agent]
Date:
Dear Sirs,
We refer to an agreement (the "Credit Agreement") dated 18th October, 2002 as
amended and made between a group of borrowers including RMC Group Limited (the
"Borrower"), Cemex Espana, S.A. (the "Parent") and others as guarantors, Banc
of America Securities Limited, BNP Paribas, HSBC Investment Bank plc, The
Royal Bank of Scotland plc and WestLB Aktiengesellschaft as Mandated Lead
Arrangers, The Royal Bank of Scotland plc as Agent, and the financial
institutions defined therein as Banks.
Terms defined in the Credit Agreement shall bear the same meaning herein.
We confirm that:
[Insert details of financial conditions to be certified]
We confirm that:
[insert details of RMC Borrowing/EBITDA Ratio for Margin calculation
purposes]
This compliance certificate is given without liability by the
[auditors/director].
[Signed: ...............
Director
of
[Original Borrower]
or
.....................
for and on behalf of
[name of auditors of the Original Borrower]
SCHEDULE 6
FORM OF ACCESSION MEMORANDUM
To: [Insert name of Agent]
From: [Subsidiary]
and
RMC Group Limited
Date:
Dear Sirs,
1. We refer to an agreement (the "Credit Agreement") dated 18th October,
2002 as amended and made between a group of borrowers including RMC
Group Limited (the "Borrower"), Cemex Espana, S.A. (the "Parent") and
others as guarantors, Banc of America Securities Limited, BNP Paribas,
HSBC Investment Bank plc, The Royal Bank of Scotland plc and WestLB
Aktiengesellschaft as Mandated Lead Arrangers, The Royal Bank of
Scotland plc as Agent, and the financial institutions defined therein
as Banks.
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. The Parent requests that [Subsidiary] become an [Additional
Borrower/Additional Guarantor] pursuant to Clause [35.1 (Request for
Additional Borrower)/35.4 (Request for Additional Guarantor)] of the
Credit Agreement.
4. [Subsidiary] is a company duly organised under the laws of [name of
relevant jurisdiction].
5. [Subsidiary] confirms that it has received from the Parent a true and
up to date copy of the Credit Agreement.
6. [Subsidiary] undertakes, upon its becoming a [Borrower/Guarantor], to
perform all the obligations expressed to be undertaken under the
Credit Agreement by a [Borrower/ Guarantor] and agrees that it shall
be bound by the Credit Agreement in all respects as if it had been an
original party thereto as an [Original Borrower/Original Guarantor].
7. The Parent confirms that, if [Subsidiary] is accepted as an
[Additional Borrower/Additional Guarantor], its guarantee obligations
pursuant to Clause 0 (Guarantee and Indemnity) of the Credit Agreement
will apply to all the obligations of [Subsidiary] under the Finance
Documents in all respects in accordance with the terms of the Credit
Agreement.
8. The Parent:
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Default is continuing or
would occur as a result of [Subsidiary] becoming an [Additional
Borrower/Additional Guarantor].
9. [Subsidiary] makes the representations and warranties set out in
Clause 19.1 (Status) to Clause 19.18 (No Immunity).
10. [Subsidiary's] administrative details are as follows:
Address:
Fax No.:
11. [Process Agent*
[Subsidiary] agrees that the documents which start any Proceedings and
any other documents required to be served in relation to those
Proceedings may be served [on it at [address of Subsidiary's place of
business in England] or at any address in Great Britain at which
process may be served on it in accordance with Part XXIII of the
Companies Act 1985]/[on [name of process agent in England at, address
of process agent] or, if different, its registered office. If
[[Subsidiary], ceases to have a place of business in Great
Britain]/[the appointment of the person mentioned above ceases to be
effective], [Subsidiary] shall immediately appoint another person in
England to accept service of process on its behalf in England. If it
fails to do so (and such failure continues for a period of not less
than fourteen days), the Agent shall be entitled to appoint such a
person by notice. Nothing contained herein shall restrict the right to
serve process in any other manner allowed by law. This applies to
Proceedings in England and to Proceedings elsewhere.]
12. This Memorandum shall be governed by English law.
[Parent] [Subsidiary]
By:......................... By:.........................
* This clause is required only if the Additional Borrower is not incorporated
in England or Wales.
SCHEDULE 7
ADDITIONAL CONDITIONS PRECEDENT
1. A copy certified as at the, date of the relevant Accession Memorandum
a true and up to date copy by an Authorised Signatory of the proposed
Additional Borrower or Additional Guarantor, of the constitutional
documents of such proposed Additional Borrower or Additional
Guarantor, as the case may be.
2. A copy, certified as at the date of the relevant Accession Memorandum
a true and up to date copy by an Authorised Signatory of the proposed
Additional Borrower or Additional Guarantor, of a board resolution of
such proposed Additional Borrower or Additional Guarantor approving
the execution and delivery of an Accession Memorandum, the accession
of such proposed Additional Borrower or Additional Guarantor to this
Agreement and the performance of its obligations under the Finance
Documents and authorising a named person or persons to sign such
Accession Memorandum, any other Finance Document and any other
documents to be delivered by such proposed Additional Borrower or
Additional Guarantor pursuant thereto.
3. A certificate of an Authorised Signatory of the proposed Additional
Borrower or Additional Guarantor setting out the names and signatures
of the person or persons authorised to sign, on behalf of such
proposed Additional Borrower or Additional Guarantor, the Accession
Memorandum, any other Finance Documents and any other documents to be
delivered by such proposed Additional Borrower or Additional Guarantor
pursuant thereto.
4. A certificate of an Authorised Signatory of the proposed Additional
Borrower or Additional Guarantor confirming that the utilisation of
the Facilities would not breach any restriction of its borrowing
powers.
5. If the proposed Additional Borrower or Additional Guarantor is
incorporated in a jurisdiction other than England and Wales, a copy,
certified a true copy by or on behalf of the proposed Additional
Borrower or Additional Guarantor, of each such law, decree, consent,
licence, approval, registration or declaration as is, in the opinion
of counsel to the Banks, necessary to render the relevant Accession
Memorandum legal, valid, binding and enforceable to make such
Accession Memorandum admissible in evidence in the proposed Additional
Borrower's or Additional Guarantor's jurisdiction of incorporation and
to enable the proposed Additional Borrower or Additional Guarantor to
perform its obligations thereunder and under the other Finance
Documents.
6. If the proposed Additional Borrower is incorporated in Spain, a
certified copy of the form(s) PE-1 stamped by the Bank of Spain (Banco
de Espana), whereby it assigns Financial Operation Number(s) to the
Facilities.
7. A copy, certified a true copy by an Authorised Signatory of the
proposed Additional Borrower or Additional Guarantor, of its latest
financial statements.
8. If the proposed Additional Borrower or Additional Guarantor is
incorporated in a jurisdiction other than England and Wales, an
opinion of the Banks' local counsel in the relevant jurisdiction in
form and substance satisfactory to the Agent.
9. An opinion of ▇▇▇▇▇▇▇▇ Chance LLP, solicitors to the Agent, in form
and substance satisfactory to the Agent.
10. If the proposed Additional Borrower or Additional Guarantor is
incorporated in a jurisdiction other than England and Wales, evidence
that the process agent specified in the relevant Accession Memorandum
has agreed to act as its agent for the service or process in England.
SCHEDULE 8
FORM OF RESIGNATION NOTICE
Part I
Resignation of Additional Borrower
To: [Insert name of Agent]
From: Cemex Espana, S.A.
Dated:
Dear Sirs,
1. We refer to an agreement (the "Credit Agreement") dated 18th October,
2002 as amended and made between a group of borrowers including RMC
Group Limited (the "Borrower"), Cemex Espana, S.A. (the "Parent") and
others as guarantors, Banc of America Securities Limited, BNP Paribas,
HSBC Investment Bank plc, The Royal Bank of Scotland plc and WestLB
Aktiengesellschaft as Mandated Lead Arrangers, The Royal Bank of
Scotland plc as Agent, and the financial institutions defined therein
as Banks.
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. We declare that [name of Borrower] is under no actual or contingent
obligation under any Finance Document in its capacity as a Borrower.
4. Pursuant to Clause 35.3 (Resignation of an Additional Borrower) we
hereby request that [name of Obligor] shall cease to be a Borrower
under the Credit Agreement.
Yours faithfully
Cemex Espana, S.A.
Part II
Resignation of Guarantor
To: [Insert name of Agent]
From: Cemex Espana, S.A.
Dated:
Dear Sirs,
1. We refer to an agreement (the "Credit Agreement") dated 18th October,
2002 as amended and made between a group of borrowers including RMC
Group Limited (the "Borrower"), Cemex Espana, S.A. (the "Parent") and
others as guarantors, Banc of America Securities Limited, BNP Paribas,
HSBC Investment Bank plc, The Royal Bank of Scotland plc and WestLB
Aktiengesellschaft as Mandated Lead Arrangers, The Royal Bank of
Scotland plc as Agent, and the financial institutions defined therein
as Banks.
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. [We declare that [name of Guarantor] has made 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/ becomes a
Guarantor in accordance with Clause 35.4 (Request for Additional
Guarantors)].
[We declare that:
(a) [name of Guarantor]'s Holding Company becomes a Guarantor and
[name of Guarantor] ceases concurrently to be a guarantor in
respect of any other indebtedness of the Group or of any member
of the Group; and
(b) [name of Guarantor] has notified the Agent of any sale, lease,
transfer or other disposal in accordance with paragraph (a) of
Clause 35.6 of the Credit Agreement.]
4. Pursuant to Clause 35.6 (Resignation of a Guarantor) we hereby request
that [name of Obligor] shall cease to be a Guarantor under the Credit
Agreement.
Yours faithfully
Cemex Espana, S.A.
SCHEDULE 9
MANDATORY COST
1. The Mandatory Cost is an addition to the interest rate to compensate
the Banks 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 Bank, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Banks' Additional Cost Rates
(weighted in proportion to the percentage participation of each Bank
in the relevant Advance) and will be expressed as a percentage rate
per annum.
3. The Additional Cost Rate for any Bank lending from a Facility Office
in a Participating Member State will be the percentage notified by
that Bank to the Agent. This percentage will be certified by that Bank
in its notice to the Agent to be its reasonable determination of the
cost (expressed as a percentage of that Bank's participation in all
Advances 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 Bank lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Advance:
AB + C(B-D) + Ex0.01
---------------------- per cent. per annum
100 - (A+C)
(b) in relation to a Advance in any currency other than sterling:
Ex0.01
--------- per cent. per annum
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Bank 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 Advance is an Unpaid Sum, the additional
rate of interest specified in paragraph (a) of Clause 27.2 (Default
interest)) payable for the relevant Interest Period on the Advance.
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 Banks 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
(pound)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 (pound)1,000,000 of
the Tariff Base of that Reference Bank.
8. Each Bank shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Bank shall supply the following information
on or prior to the date on which it becomes a Bank:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require for
such purpose.
Each Bank shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
9. The percentages of each Bank 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 Bank notifies the Agent to the contrary, each Bank'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
Bank and shall be entitled to assume that the information provided by
any Bank 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 Banks on the basis of the Additional Cost
Rate for each Bank based on the information provided by each Bank 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 Bank 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 Parent
and the Banks, determine and notify to all parties any amendments
which are required to be made to this Schedule in order to comply with
any change in law, 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.
SCHEDULE 10
EXISTING SECURITY
CONSOLIDATED GROUP
LIEN SCHEDULE (M (euro)) AS OF 12.31.04
---------------------------------------------------------------------------------------------------------------------------------
COMPANY LENDER LIEN CONCEPT BALANCE EURO
---------------------------------------------------------------------------------------------------------------------------------
CEMEX, Inc. GE Capital (FKIT 279, 280) Equipment related with the credit 0.66
Kosmos Cement Company First Corp (FKIT 101649) Equipment related with the credit 0.02
CEMEX, Inc. Hampton Land related with the credit 0.20
Mineral Resource Technologies, Inc. Met-South, Inc. Ash storage facility 0.13
Centro Distributor de Cemento,
S.A. de C.V. Bank of America 0.61
--------
1.61
---------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 11
MATERIAL SUBSIDIARIES
-------------------------------------------------------
Name
-------------------------------------------------------
Cemex Inc.
-------------------------------------------------------
Cemex Corp.
-------------------------------------------------------
Cemex Venezuela SACA
-------------------------------------------------------
Vencement Investments
-------------------------------------------------------
Construction Funding Corporation
-------------------------------------------------------
RMC Europe Limited
-------------------------------------------------------
RMC (UK) Limited
-------------------------------------------------------
SCHEDULE 12
EXISTING NOTARISATIONS
Type Borrower/Guarantor Maturity date Total Principal Amount of
of Indebtedness notarised as of December
Agreement 31, 2004
Bilateral Lines Cemex Espana S.A./n.a. Between Jan. 2005 EUR 51,086,029 (1) (2)
and Dec. 2006
Deferred Purchase
Price Aricemex S.A./n.a. July, 2005 EUR 480,810
(1) Corresponds to the total committed amount under the facilities.
Amount drawn as of 12.31.04: EUR 23,808,155.
(2) EUR 48,080,968 matured in January 26, 2005.
SIGNATURES
The Original Guarantor
RMC GROUP LIMITED
By: /s/ R. E. LAMBOURNE
The Original Borrower
RMC GROUP LIMITED
By: /s/ R. E. LAMBOURNE
The Mandated Lead Arrangers
BANC OF AMERICA SECURITIES LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BNP PARIBAS
By: /s/ ▇▇▇▇▇▇▇ REDFERNE /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
HSBC INVESTMENT BANK PLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ M. I. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ BRANCH
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇ /s/ T. ▇▇▇ ▇▇▇▇▇
The Agent
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ M. I. ▇▇▇▇▇▇
The Banks
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BNP PARIBAS
By: /s/ ▇▇▇▇▇▇▇ REDFERNE /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
HSBC BANK PLC
By: /s/ I. A. ▇▇▇▇
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ M. I. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ BRANCH
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇ /s/ T. ▇▇▇ ▇▇▇▇▇