UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Schedule
TO/A
(Rule
14d-100)
Tender
Offer Statement under Section 14(d)(1)
of
the Securities Exchange Act of 1934
(Amendment
No. 5)
RINKER
GROUP LIMITED
ABN
53 003 433 118
(Name
of
Subject Company (issuer))
CEMEX
Australia Pty Ltd
ACN
122 401 405
CEMEX,
S.A.B. de C.V.
(Names
of
Filing Persons (offerors))
Ordinary
shares
American
Depositary Shares (each representing five ordinary shares)
(Titles
of Classes of Securities)
Ordinary
Shares, ISIN AU000000RIN3
American
Depositary Shares, CUSIP 76687M101, ISIN US76687M1018
(CUSIP
and ISIN Numbers of Classes of Securities)
Mr.
Ramiro G. Villarreal Morales
General
Counsel
Av.
Ricardo Margain Zozaya #325,
Colonia
Valle del Campestre,
Garza
Garcia, Nuevo Leon, Mexico 66265
+52
81 8888 8888
(Name,
address and telephone number of
person
authorized to receive notices and communications on behalf of filing
persons)
Copy
to:
Richard
Hall
Cravath,
Swaine & Moore LLP
Worldwide
Plaza
825 Eighth
Avenue
New York,
NY 10019
(212) 474-1000
CALCULATION
OF FILING FEE
|
Transaction
Valuation(1)
|
Amount
of Filing Fee(2)
|
|
$2,676,229,274
|
$286,357
|
(1)
Estimated solely for the purpose of calculating the filing fee in accordance
with Rule 0-11(d) under the Securities Exchange Act of 1934 (the “Exchange
Act”), the transaction valuation is calculated by multiplying (i) 895,059,958
ordinary shares, which is the maximum number of ordinary shares of Rinker
Group
Limited, including 22,479,805 ordinary shares represented by 4,495,961 ADSs
(according to documents filed by Rinker with the Australian Stock Exchange),
subject to the Offer, by (ii) 23%, which is the percentage of US Holders
of
Rinker Securities (according to Rinker’s annual report on Form 20-F filed on May
23, 2006), and by (iii) the purchase price of US$13.00 in cash for each ordinary
share and US$65.00 for each ADS. Terms used and not defined in the preceding
sentence are defined below.
(2)
The
filing fee is calculated in accordance with Rule 0-11(d) of the Exchange
Act and
Fee Rate Advisory No. 3 for Fiscal Year 2007 issued by the Securities and
Exchange Commission on September 29, 2006. Such fee equals .0107% of the
transaction valuation.
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x
|
Check
box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and
identify the filing with which the offsetting fee was previously
paid.
Identify the previous filing by registration statement number,
or the Form
or Schedule and the date of its filing.
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||
|
Amount
Previously Paid: $286,357
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Form
or Registration No.: Schedule TO
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Filing
Party: CEMEX Australia Pty Ltd, ACN 122 401 405,
CEMEX,
S.A.B. de C.V.
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Date
Filed: November 14, 2006
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o
|
Check
the box if the filing relates solely to preliminary communications
made
before the commencement of a tender offer.
|
Check
the
appropriate boxes below to designate any transactions to which the statement
relates:
|
x
|
third-party
tender offer subject to Rule 14d-1.
|
|
o
|
issuer
tender offer subject to Rule 13e-4.
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|
o
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going-private
transaction subject to Rule 13e-3
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|
o
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amendment
to Schedule 13D under Rule 13d-2
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2
This
Amendment No. 5 amends and supplements the Tender Offer Statement on Schedule
TO
filed with the Securities and Exchange Commission on November 14, 2006
(the
“Schedule TO”) and amended thereafter. The Schedule TO, as amended, relates to
the offer by CEMEX Australia Pty Ltd (“Bidder”), a proprietary company
registered under the laws of Victoria, Australia and an indirect wholly-owned
subsidiary of CEMEX, S.A.B. de C.V. (“CEMEX”), to acquire all the outstanding
ordinary shares and American depositary shares of Rinker Group Limited,
a public
company registered under the laws of New South Wales, Australia (“Rinker”), at a
purchase price of US$13 per ordinary share and US$65 per ADS in cash (less
any
applicable withholding taxes and without interest), upon the terms and
subject
to the conditions of the offer (the “Offer”) (including, if the Offer is
extended or amended, the terms and conditions of any such extension or
amendment), as described in the Bidder’s Statement, dated October 30, 2006 (the
“Bidder’s Statement”). Except as specifically provided herein, this Amendment
does not modify any of the information previously reported on the Schedule
TO,
as amended.
Item
7.
Source and Amount of Funds or Other Consideration.
On
November
30, 2006, CEMEX,
S.A.B. DE C.V. (Borrower), Cemex México, S.A. de C.V. and Empresas Tolteca de
México, S.A. de C.V. (Guarantors), and BARCLAYS BANK PLC, NEW YORK BRANCH
(Administrative Agent for the Lenders) entered into an Amendment and Waiver
Agreement that
amends the terms of the credit agreement, dated May 31, 2005, and grants
the
waiver set forth therein. This Amendment and Waiver Agreement is attached
as Exhibit (b)(1)(F).
On
December
1, 2006, CEMEX, S.A.B. DE C.V. (Borrower), Cemex México, S.A. de C.V. and
Empresas Tolteca de México, S.A. de C.V. (Guarantors), and ING CAPITAL LLC
(Administrative Agent for the Lenders) entered into an Amendment and Waiver
Agreement that
amends the terms of the credit agreement, dated June 23, 2004 and amended
and
restated June 6, 2005, and grants the waiver set forth therein.
This Amendment and Waiver Agreement is attached as Exhibit
(b)(1)(G).
Item
12.
Exhibits.
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Exhibit
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Description
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|
(b)(1)(F)
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Amendment
and Waiver Agreement between CEMEX, S.A.B. DE C.V. (Borrower),
Cemex
México, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V.
(Guarantors), and BARCLAYS BANK PLC, NEW YORK BRANCH (Administrative
Agent
for the Lenders), dated November 30, 2006.
|
| (b)(1)(G) |
Amendment
and Waiver Agreement between CEMEX, S.A.B. DE C.V. (Borrower),
Cemex
México, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V.
(Guarantors), and ING CAPITAL LLC (Administrative Agent for the
Lenders),
dated December 1, 2006.
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3
SIGNATURES
After
due
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
Dated:
December 5, 2006
| CEMEX Australia Pty Ltd | ||
| |
|
|
| By: | /s/ Mr. Ramiro G. Villarreal Morales | |
| Name: Mr. Ramiro G. Villarreal Morales | ||
| Title: Director | ||
| CEMEX, S.A.B. de C.V. | ||
| |
|
|
| By: | /s/ Mr. Ramiro G. Villarreal Morales | |
| Name: Mr. Ramiro G. Villarreal Morales | ||
| Title: General Counsel | ||
4
Exhibit
Index.
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Exhibit
|
Description
|
|
(b)(1)(F)
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Amendment
and Waiver Agreement between CEMEX, S.A.B. DE C.V. (Borrower),
Cemex
México, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V.
(Guarantors), and BARCLAYS BANK PLC, NEW YORK BRANCH (Administrative
Agent
for the Lenders), dated November 30, 2006.
|
| (b)(1)(G) |
Amendment
and Waiver Agreement between CEMEX, S.A.B. DE C.V. (Borrower),
Cemex
México, S.A. de C.V. and Empresas Tolteca de México (Guarantors), S.A. de
C.V., and ING CAPITAL LLC (Administrative Agent for the Lenders),
dated December 1, 2006.
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5
Exhibit
(b)(1)(F)
EXECUTION
COPY
AMENDMENT
AND WAIVER AGREEMENT
THIS
AMENDMENT AND WAIVER AGREEMENT (as amended, supplemented or
otherwise modified
from time to time, this “Agreement”),
dated
as of November 30, 2006, is entered into between CEMEX, S.A.B. DE
C.V., a
sociedad
anónima bursátil de capital variable
organized under the laws of the United Mexican States (“Mexico”)
(formerly CEMEX, S.A. de C.V.) (the “Borrower”),
Cemex
México, S.A. de C.V., a sociedad
anónima de capital variable
organized under the laws of Mexico and Empresas Tolteca de
México, S.A. de C.V.,
a sociedad
anónima de capital variable
organized under the laws of Mexico (each a “Guarantor”
and
collectively the “Guarantors”)
and
BARCLAYS BANK PLC, NEW YORK BRANCH, as administrative agent
for the Lenders (in
such capacity, the “Administrative
Agent”)
acting
on the instructions of the Required Lenders for and on behalf
of the Lenders
party to the Credit Agreement (as defined below).
W I T N E S S E T H
WHEREAS,
the Borrower, the Guarantors, the Lenders from time to time
party thereto, the
Administrative Agent, Barclays Capital, The Investment Banking
Division of
Barclays Bank PLC, as Joint Lead Arranger and Joint Bookrunner
and Citigroup
Global Markets Inc. as Documentation Agent, Joint Lead Arranger
and Joint
Bookrunner, entered into a credit agreement, dated as of May
31, 2005 (as
amended, supplemented or otherwise modified prior to the date
hereof, the
“Credit
Agreement”);
and
WHEREAS,
the parties hereto desire to amend the terms of the Credit
Agreement pursuant to
this Agreement;
and
WHEREAS,
the Administrative Agent on behalf of the Required Lenders
is willing to consent
to certain amendments to the Credit Agreement and grant such
requested waiver,
upon the terms and conditions set forth below;
NOW
THEREFORE, in consideration of the waiver and amendment herein
obtained, and in
consideration of the premises and other good and valuable consideration,
the
parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Unless
otherwise defined herein or the context otherwise requires,
terms used in this
Agreement, including its preamble and recitals, shall have
the respective
meanings set forth in the Credit Agreement.
ARTICLE
II
EFFECTIVE DATE
This
Agreement shall become effective upon the execution and delivery
of this
Agreement by the Borrower and the Administrative Agent (acting
on the
instructions of the Required Lenders) (the “Effective
Date”).
On
the
Effective Date, the Credit Agreement shall be amended as set
forth in this
Agreement.
ARTICLE
III
WAIVER
OF
CERTAIN PROVISIONS OF THE CREDIT AGREEMENT
On
the
date on which the offer made by CEMEX Australia Pty Ltd., a
proprietary limited
company organized under the laws of Victoria, Australia (“Cemex
Australia”)
(as
evidenced by the announcement made by the Borrower on October
27, 2006) to
acquire the issued and outstanding shares of the Rinker Group
Limited, a public
limited company organized under the laws of the New South Wales,
Australia not
previously owned by Cemex Australia (as such offer may be amended,
supplemented,
revised, renewed, waived or otherwise modified from time to
time) becomes, or is
declared to be, unconditional in all respects (the
“Waiver
Effective Date”),
the
Required Lenders agree to waive compliance by the Borrower
of the Credit
Agreement to the extent set forth in this Article III.
Except
as expressly so waived, the Credit Agreement shall continue
in full force and
effect in accordance with its terms.
SECTION
3.1 Waiver
of Section 8.01(a) (Financial Condition) of the Credit Agreement.
From
the Waiver Effective Date up to, and including, December 31,
2007, or such other
later date as may be agreed between the parties to this Agreement
(the
“Waiver
Termination Date”),
the
Required Lenders in accordance with Section
13.02
of the
Credit Agreement, hereby waive compliance by the Borrower with
the financial
condition covenant set forth Section
8.01(a)
of the
Credit Agreement.
SECTION
3.2 Waiver
of
Compliance with Section
8.01(a) (Financial Condition) of the Credit Agreement.
As a
result of the waiver provided in Section
3.1
hereof,
the Borrower shall at no time during the period commencing
on the Waiver
Effective Date up to, and including, the Waiver Termination
Date (such period,
the “Waiver
Period”)
be
obliged to ensure that it complies with such financial condition
covenant or
provide any compliance or other certificate in relation to
such covenant and no
consequences whatsoever shall flow under the Credit Agreement
or any other
Transaction Document from the failure by the Borrower to comply
with such
covenant during the Waiver Period.
SECTION
3.3 Extent
of Waiver of Section 8.01(a) (Financial Condition) of the Credit
Agreement.
The
waiver set forth in Section
3.1
hereof
shall not be deemed to constitute a waiver with respect to
compliance with any
other term, provision or condition of the Credit Agreement,
any other
Transaction Document or any other instrument or agreement referred
to therein or
relating thereto or prejudice any right or remedy that the
Administrative Agent
or any Lender may now have or may in the future arise under
or in connection
with the Credit Agreement, any other Transaction Document or
any other
instrument or agreement referred to therein or relating thereto.
2
SECTION
3.4 Compliance
with Section 8.01(a) (Financial Condition) of the Credit
Agreement.
In the
event that the Waiver Termination Date is December 31, 2007,
and
provided such Waiver Termination Date is not extended pursuant to
agreement between the parties to this Agreement, the waiver shall cease
to
be effective commencing on January 1, 2008. After the Waiver
Termination Date,
the Borrower undertakes to comply with the financial condition
covenant set
forth in Section
8.01(a)
of the
Credit Agreement, as amended pursuant to Article
IV
hereof.
ARTICLE
IV
AMENDMENT
On
the
Effective Date, the Administrative Agent, on behalf of the
Required Lenders,
agrees to amend, without any further action, the provision
of the Credit
Agreement referred to below and such provision is hereby modified
and amended in
accordance with this Article IV.
Except
as so modified and amended, the Credit Agreement shall continue
in full force
and effect in accordance with its terms.
SECTION
4.1 Amendment
to Section 8.01of the Credit Agreement.
Section
8.01
of the
Credit Agreement is amended by inserting the following paragraph
(d)
at the
end of Section
8.01:
“(d)
For
the
purposes of calculating the Consolidated Net Debt to EBITDA
Ratio in Section
8.01(a) above only, “Consolidated Net Debt” shall not include any Debt which,
notwithstanding falling within the definition of Debt, is not
required to be
recorded as a liability by the Borrower on its consolidated
balance sheet in
accordance with generally accepted accounting principles applicable
to the
Borrower which are in effect as at the time that such Debt
is entered into,
issued or incurred.”
ARTICLE
V
FEE
SECTION
5.1 Fee.
The
Borrower hereby agrees to pay to the Administrative Agent for
the benefit of the
Lenders that (i) consent in writing to the provisions of this
Agreement (the
“Written
Consent”)
on or
prior to November 28, 2006 (the “Consent
Date”),
(ii)
provide to the Administrative Agent (with a copy to the Borrower)
its Written
Consent on or prior to the Consent Date, and (iii) instruct
the Administrative
Agent to execute and deliver this Agreement in accordance with
the terms hereof
on or prior to the Consent Date (the “Consenting
Lenders”),
a fee
of 0.025% (the “Consent
Fee”)
of the
outstanding commitment amount of each Consenting Lender under
the Credit
Agreement; provided
that,
the Consent Fee shall only be payable if the Written Consent
is delivered to the
Administrative Agent on or prior to the Consent Date. The Consent
Fee shall be
payable within two Business Days of the execution by the Administrative
Agent
(acting on the instructions of the Required Lenders) of this
Agreement,
provided
that, if
such date is not a Business Day, then the Consent Fee shall
be payable on the
next succeeding Business Day.
3
ARTICLE
VI
MISCELLANEOUS
PROVISIONS
SECTION
6.1 No
Other Agreements; References to the Credit Agreement.
Other
than as specifically provided herein, this Agreement shall
not operate as a
waiver or amendment of any right, power or privilege of the
Lenders under the
Credit Agreement or any other Transaction Document or of any
other term or
condition of the Credit Agreement or any other Transaction
Document nor shall
the entering into of this Agreement preclude the Lenders from
refusing to enter
into any further waivers or amendments with respect to the
Credit Agreement. All
references to the Credit Agreement in any document, instrument,
agreement, or
writing shall, from and after the Effective Date, be deemed
to refer to the
Credit Agreement, and, as used in the Credit Agreement, the
terms “Agreement”,
“herein”, “hereafter”, “hereunder”, “hereto”, and words of similar import shall
mean, from and after the Effective Date, the Credit Agreement.
SECTION
6.2 Headings.
The
descriptive headings of the various sections or parts of this
Agreement are for
convenience only and shall not affect the meaning or construction
of any of the
provisions hereof.
SECTION
6.3 Execution
in Counterparts.
This
Agreement may be executed by the parties hereto in several
counterparts, each of
which shall be deemed to be an original and all of which shall
constitute
together but one and the same agreement. Delivery of any executed
counterpart of
a signature page of this Agreement by facsimile or other electronic
transmission
shall be as effective as delivery of a manually executed counterpart
hereof.
SECTION
6.4 Governing
Law; Entire Agreement.
THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
AND THE RIGHTS OF
THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD
REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
This Agreement
and the other Transaction Documents constitute the entire understanding
among
the parties hereto with respect to the subject matter hereof
and supersede any
prior agreements, written or oral, with respect thereto.
4
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as
of the day and year first above written.
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CEMEX,
S.A.B.
DE C.V.
|
|
By:____________________________________
Title Chief Financial Officer
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CEMEX
MÉXICO, S.A.
DE C.V.
|
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By:____________________________________
Title Chief Financial Officer
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EMPRESAS
TOLTECA DE MÉXICO, S.A.
DE C.V.
|
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By:____________________________________
Title Chief Financial Officer
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BARCLAYS
BANK PLC, NEW YORK BRANCH, as Administrative Agent
acting in its own
capacity and for and on behalf of the Required
Lenders
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By:____________________________________
Title Associate Director
|
5
Exhibit
(b)(1)(G)
EXECUTION
COPY
AMENDMENT
AND WAIVER AGREEMENT
THIS
AMENDMENT AND WAIVER AGREEMENT (as amended, supplemented or otherwise modified
from time to time, this “Agreement”),
dated
as of December 1, 2006, is entered into between CEMEX, S.A.B. DE C.V., a
sociedad
anónima bursátil de capital variable
organized under the laws of the United Mexican States (“Mexico”)
(formerly CEMEX, S.A. de C.V.) (the “Borrower”),
Cemex
México, S.A. de C.V., a sociedad
anónima de capital variable
organized under the laws of Mexico and Empresas Tolteca de México, S.A. de C.V.,
a sociedad
anónima de capital variable
organized under the laws of Mexico (each a “Guarantor”
and
collectively the “Guarantors”)
and
ING CAPITAL LLC, as administrative agent for the Lenders (in such capacity,
the
“Administrative
Agent”)
acting
on the instructions of the Required Lenders for and on behalf of the Lenders
party to the Credit Agreement (as defined below).
W I T N E
;S S E T H
WHEREAS,
the Borrower, the Guarantors, the Lenders from time to time party thereto,
the
Administrative Agent for the Lenders, Barclays Bank PLC, New York branch, as
Issuing Bank and Documentation Agent, ING Bank N.V., as Issuing Bank, Barclays
Capital, the Investment Banking Division of Barclays Bank plc, as Joint
Bookrunner and Citigroup Global Markets Inc., as Joint Bookrunner and
Syndication Agent, entered into an amended and restated credit agreement, dated
as of June 6, 2005, to amend the credit agreement, dated as of June 23, 2004,
among the Borrower, the Guarantors, Barclays, as Issuing Bank and Documentation
Agent, ING Bank N.V., as an Issuing Bank, the several lenders party thereto,
Barclays Capital, the Investment Banking Division of Barclays, as a Joint
Bookrunner and ING Capital LLC, as Joint Bookrunner and Administrative Agent
(as
amended, supplemented or otherwise modified prior to the date hereof, the
“Credit
Agreement”);
and
WHEREAS,
the parties hereto desire to amend the terms of the Credit Agreement pursuant
to
this Agreement;
and
WHEREAS,
the Administrative Agent on behalf of the Required Lenders is willing to consent
to certain amendments to the Credit Agreement and grant such requested waiver,
upon the terms and conditions set forth below;
NOW
THEREFORE, in consideration of the waiver and amendment herein obtained, and
in
consideration of the premises and other good and valuable consideration, the
parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Unless
otherwise defined herein or the context otherwise requires, terms used in this
Agreement, including its preamble and recitals, shall have the respective
meanings set forth in the Credit Agreement.
ARTICLE
II
EFFECTIVE
DATE
This
Agreement shall become effective upon the execution and delivery of this
Agreement by the Borrower and the Administrative Agent (acting on the
instructions of the Required Lenders) (the “Effective
Date”).
On
the
Effective Date, the Credit Agreement shall be amended as set forth in this
Agreement.
ARTICLE
III
WAIVER
OF
CERTAIN PROVISIONS OF THE CREDIT AGREEMENT
On
the
date on which the offer made by CEMEX Australia Pty Ltd., a proprietary limited
company organized under the laws of Victoria, Australia (“Cemex
Australia”)
(as
evidenced by the announcement made by the Borrower on October 27, 2006) to
acquire the issued and outstanding shares of the Rinker Group Limited, a public
limited company organized under the laws of the New South Wales, Australia,
not
previously owned by CEMEX Australia (as such offer may be amended, supplemented,
revised, renewed, waived or otherwise modified from time to time) becomes,
or is
declared to be, unconditional in all respects (the “Waiver
Effective Date”),
the
Required Lenders agree to waive compliance by the Borrower of the Credit
Agreement to the extent set forth in this Article III.
Except
as expressly so waived, the Credit Agreement shall continue in full force and
effect in accordance with its terms.
SECTION
3.1 Waiver
of Section 9.01(a) (Financial Condition) of the Credit Agreement.
From
the Waiver Effective Date up to, and including, December 31, 2007, or such
other
later date as may be agreed between the parties to this Agreement (the
“Waiver
Termination Date”),
the
Required Lenders in accordance with Section
15.02
of the
Credit Agreement, hereby waive compliance by the Borrower with the financial
condition covenant set forth in Section
9.01(a)
of the
Credit Agreement.
SECTION
3.2 Waiver
of Compliance with Section 9.01(a) (Financial Condition) of the Credit
Agreement.
As a
result of the waiver provided in Section
3.1
hereof,
the Borrower shall at no time during the period commencing on the Waiver
Effective Date up to, and including the Waiver Termination Date (such period,
the “Waiver
Period”)
be
obliged to ensure that it complies with such financial condition covenant or
provide any compliance or other certificate in relation to such covenant and
no
consequences whatsoever shall flow under the Credit Agreement or any other
Transaction Document from the failure by the Borrower to comply with such
covenant during the Waiver Period.
SECTION
3.3 Extent
of Waiver of Section 9.01(a) (Financial Condition) of the Credit
Agreement.
The
waiver set forth in Section
3.1
hereof
shall not be deemed to constitute a waiver with respect to compliance with
any
other term, provision or condition of the Credit Agreement, any other
Transaction Document or any other instrument or agreement referred to therein
or
relating thereto or prejudice any right or remedy that the Administrative Agent
or any Lender may now have or may in the future arise under or in connection
with the Credit Agreement, any other Transaction Document or any other
instrument or agreement referred to therein or relating thereto.
2
SECTION
3.4 Compliance
with Section 9.01(a) (Financial Condition) of the Credit
Agreement.
In the
event that the Waiver Termination Date is December 31, 2007, and provided such
Waiver Termination Date is not extended pursuant to agreement between the
parties to this Agreement, the waiver shall cease to be effective commencing
on
January 1, 2008. After the Waiver Termination Date, the Borrower undertakes
to
comply with the financial condition covenant set forth in Section
9.01(a)
of the
Credit Agreement as amended pursuant to Article
IV
hereof.
ARTICLE
IV
AMENDMENT
On
the
Effective Date, the Administrative Agent, on behalf of the Required Lenders,
agrees to amend, without any further action, the provision of the Credit
Agreement referred to below and such provision is hereby modified and amended
in
accordance with this Article IV.
Except
as so modified and amended, the Credit Agreement shall continue in full force
and effect in accordance with its terms.
SECTION
4.1 Amendment
to Section 9.01 of the Credit Agreement.
Section
9.01
of the
Credit Agreement is amended by inserting the following paragraph (d)
at the
end of Section
9.01:
|
“(d)
|
For
the purposes of calculating the Consolidated Net Debt to EBITDA
Ratio
in
Section 9.01(a) above only, “Consolidated Net Debt” shall not include any
Debt which, notwithstanding falling within the definition of Debt,
is not
required to be recorded as a liability by the Borrower on its consolidated
balance sheet in accordance with generally accepted accounting principles
applicable to the Borrower which are in effect as at the time that
such
Debt is entered into, issued or
incurred.”
|
ARTICLE
V
FEE
SECTION
5.1 Fee.
The
Borrower hereby agrees to pay to the Administrative Agent for the benefit of
the
Lenders that (i) consent in writing to the provisions of this Agreement (the
“Written
Consent”)
on or
prior to November 28, 2006 (the “Consent
Date”),
(ii)
provide to the Administrative Agent (with a copy to the Borrower) its Written
Consent on or prior to the Consent Date, and (iii) instruct the Administrative
Agent to execute and deliver this Agreement in accordance with the terms hereof
on or prior to the Consent Date (the “Consenting
Lenders”),
a fee
of 0.025% (the “Consent
Fee”)
of the
outstanding commitment amount of each Consenting Lender under the Credit
Agreement; provided
that,
the Consent Fee shall only be payable if the Written Consent is delivered to
the
Administrative Agent on or prior to the Consent Date. The Consent Fee shall
be
payable within two Business Days of the execution by the Administrative Agent
(acting on the instructions of the Required Lenders) of this Agreement,
provided
that, if
such date is not a Business Day, then the Consent Fee shall be payable on the
next succeeding Business Day.
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ARTICLE
VI
MISCELLANEOUS
PROVISIONS
SECTION
6.1 No
Other Agreements; References to the Credit Agreement.
Other
than as specifically provided herein, this Agreement shall not operate as a
waiver or amendment of any right, power or privilege of the Lenders under the
Credit Agreement or any other Transaction Document or of any other term or
condition of the Credit Agreement or any other Transaction Document nor shall
the entering into of this Agreement preclude the Lenders from refusing to enter
into any further waivers or amendments with respect to the Credit Agreement.
All
references to the Credit Agreement in any document, instrument, agreement,
or
writing shall from and after the Effective Date be deemed to refer to the Credit
Agreement, and, as used in the Credit Agreement, the terms “Agreement”,
“herein”, “hereafter”, “hereunder”, “hereto”, and words of similar import shall
mean, from and after the Effective Date, the Credit Agreement.
SECTION
6.2 Headings.
The
descriptive headings of the various sections or parts of this Agreement are
for
convenience only and shall not affect the meaning or construction of any of
the
provisions hereof.
SECTION
6.3 Execution
in Counterparts.
This
Agreement may be executed by the parties hereto in several counterparts, each
of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. Delivery of any executed counterpart
of
a signature page of this Agreement by facsimile or other electronic transmission
shall be as effective as delivery of a manually executed counterpart
hereof.
SECTION
6.4 Governing
Law; Entire Agreement.
THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS
OF
THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE. This Agreement
and the other Transaction Documents constitute the entire understanding among
the parties hereto with respect to the subject matter hereof and supersede
any
prior agreements, written or oral, with respect thereto.
4
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
as
of the day and year first above written.
|
CEMEX,
S.A.B.
DE C.V.
|
|
By:____________________________________
Title: Chief Financial
Officer
|
|
CEMEX
MÉXICO, S.A.
DE C.V.
|
|
By:____________________________________
Title: Chief Financial
Officer
|
|
EMPRESAS
TOLTECA DE MÉXICO, S.A.
DE C.V.
|
|
By:____________________________________
Title: Chief Financial
Officer
|
|
ING
CAPITAL LLC, as Administrative Agent acting in its own capacity and
for
and on behalf of the Required Lenders
|
|
By:____________________________________
Title: Director
|
5